South Coast Area Office 200 Oceangate, Suite 1000 Long Beach, …documents.coastal.ca.gov/reports/2007/11/W16a-11-2007.pdf · 2014-03-10 · published in the Huntington Beach Independent,

STATE OF CALIFORNIA - THE RESOURCES AGENCY ARNOLD SCHWARZENEGGER, Governor

CALIFORNIA COASTAL COMMISSION South Coast Area Office 200 Oceangate, Suite 1000 Long Beach, CA 90802-4302 (562) 590-5071

TO: Commiss FROM: Sherilyn Teresa H Karl Sch Meg Vau SUBJECT: Major AmHuntington Beach CerCommission Action at SUMMARY OF LCP A Request by the City ofLocal Coastal Programa project-specific amedevelopment on a vacwhich is currently in agacres have long been were, until 2004, locatBolsa Chica LCP areaCity of Huntington Beadeferred certification aremains uncertified todnewly annexed area indesignations for thosecertified at the time theThe 40 acre area was The City’s current ame(Low Density Residen(Open Space – Park), Conservation).

W16a
November 1, 2007
ioners and Interested Persons

Sarb, Deputy Director, South Coast District, Orange County enry, Manager, South Coast District

wing, Supervisor, Regulation & Planning, Orange County Area ghn, Coastal Program Analyst

endment Request No. 1-06 (Shea Homes/Parkside) to the City of tified Local Coastal Program Land Use Plan (For Public Hearing and the November 14-16, 2007 meeting in San Diego).

MENDMENT REQUEST NO. 1-06

Huntington Beach to amend the Land Use Plan (LUP) portion of the (LCP). The proposed Local Coastal Program (LCP) amendment is

ndment designed to make possible a low density residential ant, approximately 50-acre site comprising two legal lots, most of ricultural production. Of the total project area, approximately 45

located within the City of Huntington Beach. The remaining 5 acres ed within unincorporated County of Orange jurisdiction, within the . However, with the recent annexation, the entire site is within the ch. Of the 45 acre portion of the site, approximately 40 acres were t the time the City’s overall Local Coastal Program was certified and ay. This LCP amendment would incorporate that 40 acres and the to the City’s existing LCP and establish land use and zoning areas. The remaining five acre portion of the 45 acre area was City’s overall LCP was certified as Open Space – Park (OS-P). originally deferred certification due in part to wetland issues.

ndment requests designation of approximately 38.5 acres as RL-7 tial – maximum 7 units per acre), approximately 8.2 acres as OS-P and approximately 3.3 acres as OS–C (Open Space –

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Text Box

Go to the report addendum posted on November 9, 2007

http://documents.coastal.ca.gov/reports/2007/11/W16a-11-2007-a10.pdf

Huntington Beach LCP Amendment 1-06 (Parkside) November 2007

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SUMMARY OF STAFF RECOMMENDATION: The motion to accomplish the staff recommendation is found on page 5. EXECUTIVE SUMMARY At the May 2007 hearing in San Pedro, after presentations by staff, the applicant, and public testimony, the Commission voted to deny the subject Land Use Plan amendment, as submitted. A motion (i.e. the main motion) was made to approve the Land Use Plan amendment with modifications, but, upon deliberation, the hearing was continued. The LCPA was subsequently scheduled for Commission action at its July 9-13, 2007 hearing. The LCP amendment originally proposed changes to both the Land Use Plan (LUP) and the Implementation Plan (IP). On July 3, 2007, the City withdrew the IP portion of the LCPA. The Commission recognized the withdrawal of the IP amendment at its July 11, 2007 hearing. Also at its July 11, 2007 hearing, the Commission postponed action on suggested modifications for the LUP portion of the LCPA. Thus, the action to be considered by the Commission at this hearing is whether or not to approve the Land Use Plan amendment with modifications. Commission staff recommends that the Commission approve the Land Use Plan amendment, if modified pursuant to the staff recommendation. At the Commission’s May hearing public testimony and Commission deliberation focused attention on the historic presence of wetlands on the site and alleged unpermitted fill and other land alterations that resulted in impacts to wetlands. With the continuance, the Commission requested that staff investigate the allegations and consider adjustments to the recommendation based on that effort. Since the May 2007 hearing and in preparation for the July 2007 hearing, Commission staff reviewed the material presented at the May hearing and compiled and analyzed additional information including but not limited to photographs, maps, topographic surveys, and prior City, County and Commission permitting history that pertain to the Shea-Parkside site and surrounding areas. These materials were examined in an effort to analyze how the topography of the site has changed over time and whether or not those changes required and obtained authorization from the Commission. Commission staff also re-evaluated a prior wetland delineation issued by the U.S. Environmental Protection Agency in 1989 that delineated an approximately 8.3 acre wetland (known as the 'EPA wetland') on the property (located roughly east of the area referred to as the "AP" wetland), analyzed topographic changes that have occurred in the area of the EPA delineation, and reviewed a resurgent challenge by Shea Homes of the validity of the EPA delineation. Highlights from the effort are described below, with further details provided in the findings and in memoranda prepared by various technical staff which are available as exhibits to this report.


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Commission staff has concluded that the topography of the site has changed over time and that those changes have affected the location and extent of wetlands on the property, including but not limited to the area of the EPA wetland. Some of those changes have occurred since the Commission gained regulatory control of the site. Furthermore, while the Commission has granted one coastal development permit for development on the property (i.e. 5-82-278 (Smokey's Stables) for equestrian related facilities, some of the changes to the property (including some associated with the equestrian area) cannot be correlated with any specific authorization by the Commission (past Commission or staff action at the site is described in greater detail on pages 31 and 32). Commission staff has concluded that, without these alterations, the presence of wetland resources on the site would be more extensive than the previously identified "AP", "CP", and "WP" wetland areas shown on Exhibit L (Revised) dated 5-3-07 which accompanied the May 2007 staff recommendation. Thus, staff made changes to its recommendation to expand the area designated Open Space-Conservation in order to capture these areas (e.g. the EPA wetlands), as well as buffers for those resource areas. The patchwork of wetlands, filled wetlands, ESHA and buffers leaves some additional land intermingled between the resource areas that, if intensively developed, would be disruptive to the resource areas and would not be compatible with the continuance of these habitat areas. These intermingled areas were known to be wetlands in the 19th and early half of the 20th century and there remains some unresolved question as to whether some of that area would have been delineated as wetland more recently if more data were available and/or past land alteration hadn’t occurred. Furthermore, raptor foraging area on the site must also be reserved. As described in greater detail in the findings, staff is recommending that these intermingled areas be designated Open Space Conservation, not because they are wetlands, but rather because they are relatively small, isolated areas surrounded by wetlands, ESHA, or their buffers which could not be developed without significantly degrading and/or disrupting the adjacent habitat areas. In addition, these areas can function as raptor foraging or potential mitigation sites. For the above reasons, Commission staff recommends reservation of these intermingled areas as open space for habitat enhancement/restoration, potential mitigation, and to accommodate a natural treatment system for water quality management. Commission staff recommends that the more constrained residential development footprint may be offset through higher development density concentrated in the northeasterly portion of the site. In summary, Staff's current recommendation contains the following major features: 1) The area recommended for designation as Open Space-Conservation is 31 acres on the western portion of the property. The recommended OS-C area incorporates the "AP", "CP", "WP" wetlands, portions of the former EPA wetland, north and south Eucalyptus grove ESHA, wetland and ESHA buffers, raptor foraging area, and remaining intermingled areas to form contiguous Open Space; 2) Residential development is now concentrated in the northeasterly portion of the site on about 19 acres, with land use designation and zoning that allow for clustering development at a higher density;


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3) Provisions for hazard mitigation (e.g. the vegetated flood protection feature); and 4) A natural treatment system (NTS) for water quality protection and enhancement would be allowed in the Open Space-Conservation area, but not within wetlands (existing or previously delineated), ESHA, or buffers. Commission staff have not carried forward its May 2007 recommendation to allow the placement of a NTS within the outer portion of the ESHA buffer. In addition, the staff recommendation continues to preclude an NTS within wetlands or wetland buffers. However, staff's recommendation continues to allow for the placement of an NTS within some remainder of the Open Space-Conservation area where there remains ample space. The major area of disagreement is the extent of area to be designated Open Space Conservation. More specifically, the applicant disagrees with staff’s assessment of: 1) the extent of wetlands that exists at the site; 2) the extent of unpermitted development that may have occurred on site; and, 3) the need for a full 100 meter buffer for the northern Eucalyptus ESHA. Regarding on site wetlands the applicant agrees that the area referred to as the expanded CP is a wetland and agrees to the 100 foot buffer for this wetland area. The applicant does not agree that the AP area is a wetland, but has indicated a willingness to concede that point and provide a 100 foot buffer for this wetland area. However, the applicant disagrees that the WP area is a wetland or that the EPA area ever was a wetland and objects to those characterizations and to designation of those areas and their buffers as Open Space Conservation. In addition, the applicant objects to precluding an NTS within the outer limits of the ESHA buffer. STANDARD OF REVIEW For the proposed suggested modifications to the Land Use Plan amendment, the standard of review is conformance with and satisfaction of the requirements of the Chapter 3 policies of the Coastal Act. SUMMARY OF PUBLIC PARTICIPATION Section 30503 of the Coastal Act requires public input in Local Coastal Program development. During the preparation, approval, certification, and amendment of any local coastal program, the public, as well as all affected governmental agencies, including special districts, shall be provided maximum opportunities to participate. Prior to submission of a local coastal program for approval, local governments shall hold a public hearing or hearings on that portion of the program which has not been subjected to public hearings within four years of such submission. Prior to submittal of the LCPA to the Commission, the City held numerous public hearings on the proposed LCP amendment as shown on exhibit D. All City staff reports were made available for public review in the Planning Department and


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in the Huntington Beach Public Library. Public hearing notices were mailed to property owners of record for the parcels that are the subject of the amendment as well as parcels within a 1,000 foot radius (including occupants), and notice of the public hearing was published in the Huntington Beach Independent, a local newspaper of general circulation. ADDITIONAL INFORMATION Copies of the staff report are available online on the Coastal Commission’s website at www.coastal.ca.gov or at the South Coast District office located in the ARCO Center Towers, 200 Oceangate, Suite 1000, Long Beach, 90802. To obtain copies of the staff report by mail, or for additional information, contact Meg Vaughn in the Long Beach office at (562) 590-5071. The City of Huntington Beach contact for this LCP amendment is Scott Hess, Director of Planning, who can be reached at (714) 536-5271. I. STAFF RECOMMENDATION A. Approval of the LUP Amendment with Suggested Modifications

MOTION: I move that the Commission certify Land Use Plan Amendment No. 1-06 for the City of Huntington Beach if it is modified as suggested by staff.

STAFF RECOMMENDATION TO CERTIFY WITH SUGGESTED MODIFICATIONS:

Staff recommends a YES vote. Passage of the motion will result in the certification of the land use plan amendment with suggested modifications and adoption of the following resolution and findings. The motion to certify with suggested modifications passes only upon an affirmative vote of the majority of the appointed Commissioners.

RESOLUTION TO CERTIFY WITH SUGGESTED MODIFICATIONS: The Commission hereby certifies the Land Use Plan Amendment No. 1-06 for the City of Huntington Beach if modified as suggested and adopts the findings set forth below on the grounds that the Land Use Plan amendment with suggested modifications will meet the requirements of and be in conformity with the policies of Chapter 3 of the Coastal Act. Certification of the land use plan amendment if modified as suggested complies with the California Environmental Quality Act because either 1) feasible mitigation measures and/or alternatives have been incorporated to substantially lessen any significant adverse effects of the plan on the environment, or 2) there are no further feasible alternatives or mitigation measures that would substantially lessen any significant adverse impacts which the Land Use Plan Amendment may have on the environment.


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II. SUGGESTED MODIFICATIONS Certification of City of Huntington Beach LCP Amendment Request No. 1-06 is subject to the following modifications. The City’s existing language is shown in plain text. The City’s proposed additions are shown in bold text. The City’s proposed deletions are shown in plain text, strike out. The Commission’s suggested additions are shown in bold, italic, underlined text. The Commission’s suggested deletions are show in bold, italic, underlined, strike out text. LAND USE PLAN SUGGESTED MODIFICATIONS: SUGGESTED MODIFICATION NO. 1 Sub-Area Descriptions and Land Use Plan The City’s certified and proposed Land Use Plan (LUP) language, on page IV-C-11, under the heading: Zone 2 – Bolsa Chica, shall be modified as follows: Existing Land Uses Inland (Pacific Coast Highway and areas north to the Coastal Zone boundary.) The majority of Zone 2, the Bolsa Chica, is located outside the City’s corporate boundary, within the County of Orange. The area is in the City’s Sphere of Influence … A 44 50 acre area between Los Patos the residential development along Kenilworth Drive and the East Garden Grove Wintersburg Flood Control Channel is vacant and includes a small section of the Bolsa Chica bluffs. Coastal (Seaward of Pacific Coast Highway) … Coastal Element Land Use Plan Inland (Pacific Coast Highway and areas north to the Coastal Zone boundary.)


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The Coastal Element does not present a land use plan for the Bolsa Chica. The land area north of the Bolsa Chica, within the City’s corporate and Coastal Zone boundaries, is built out consistent with its Coastal Element designation of low density. The area west of the Bolsa Chica is also developed consistent with the Coastal Element Land Use designation of low density residential and multi-family residential. The vacant 44 acre area next to the Wintersburg Flood Control Channel retains its existing designation as an “Area of Deferred Certification.” Prior to development of the site, an amendment to the City’s Local Coastal Program will be required, subject to Coastal Commission approval; the amendment would take effect upon Commission certification. Portions of this zone are included in the Community District/Sub-area Schedule as sub-areas 4G and 4J. The Coastal Element land use designation for the vacant 45 acre area next to the East Garden Grove-Wintersburg Flood Control Channel was recently certified as RL-7 (Low Density Residential) and OS-P (Open Space – Park). In addition, approximately 5 acres of land was annexed from the County of Orange into the City of Huntington Beach. This area is designated RL-7 (Low Density Residential) and OS-C (Open Space – Conservation). The fifty (50) acre area (including the 5 acre area annexed by the City in 2004) adjacent to and immediately north of the East Garden Grove/Wintersburg Flood Control Channel and adjacent to and immediately west of Graham Street is land use designated Residential and Open Space – Conservation. (See Figure C-6a) There are wetlands, a Eucalyptus Grove that is an Environmentally Sensitive Habitat Area because it provides important raptor habitat, buffer areas, and intermingled raptor foraging habitat at this site. These areas are designated Open Space – Conservation. The Wintersburg Channel Bikeway is identified at this site on the north levee of the flood control channel in the Commuter Bikeways Strategic Plan, which is the regional bikeways plan for Orange County (See page IV-C-49 and figure C-14). SUGGESTED MODIFICATION No. 2 The table titled Zone 2 – Land Use Designations, on page IV-C-11, shall be modified as follows:

Zone 2 – Land Use Designations Residential RL-7 or RM or RH Open Space OS-P

OS-S OS-C

“White Hole” Area of Deferred CertificationZone 2 – Specific Plan Areas None


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Zone 2 – General Plan Overlays 4G, 4J

SUGGESTED MODIFICATION NO. 3 Figure C-6 of the City’s Land Use Plan shall be modified to reflect the change in the City’s corporate boundary and to accurately reflect the correct areas of the certified land use designations (Residential and Open Space Conservation) for the area. SUGGESTED MODIFICATION NO. 4 New Figure C-6a shall be added to the City’s Land Use Plan, which shall be a land use plan of the Parkside site and shall depict the approved land use designations on the site as shown on 3rd revised exhibit NN. SUGGESTED MODIFICATION NO. 5 Add new subarea 4-K to table C-2 (Community District and Subarea Schedule) as depicted below: Subarea Characteristic Standards and Principles 4-K Permitted Uses Categories: Residential (R-L or R-M)

Open Space Conservation (OS-C) See Figure C-6a

Density/Intensity Residential Maximum of fifteen (15) dwelling units per acre.

Design and Development

See Figure C-6a A development plan for this area shall concentrate and cluster residential units in the northeastern portion of the site and include, consistent with the land use designations and Coastal Element policies, the following required information (all required information must be prepared or updated no more than one year prior to submittal of a coastal development permit application): 1. A Public Access Plan, including, but not limited to the following features:

Class I Bikeway (paved off-road bikeway; for use by bicyclists, walkers, joggers, roller skaters, and strollers) along the


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north levee of the flood control channel. If a wall between residential development and the Bikeway is allowed it shall include design features such as landscaped screening, non-linear footprint, decorative design elements and/or other features to soften the visual impact as viewed from the Bikeway.

Public vista point with views toward the Bolsa Chica and ocean consistent with Coastal Element policies C 4.1.3, C 4.2.1, and C 4.2.3.

All streets shall be ungated, public streets available to the general public for parking, vehicular, pedestrian, and bicycle access. All public entry controls (e.g. gates, gate/guard houses, guards, signage, etc.) and restrictions on use by the general public (e.g. preferential parking districts, resident-only parking periods/permits, etc.) associated with any streets or parking areas shall be prohibited.

Public access trails to the Class I Bikeway, open space and to and within the subdivision, connecting with trails to the Bolsa Chica area and beach beyond.

Public access signage. When privacy walls associated with

residential development are located adjacent to public areas they shall be placed on the private property, and visual impacts created by the walls shall be minimized through measures such as open fencing/wall design, landscaped screening, use of an undulating or off-set wall footprint, or decorative wall features (such as artistic imprints, etc.), or a combination of these measures

2. Habitat Management Plan for all ESHA, wetland, and buffer areas and other areas designated Open Space Conservation that provides for their restoration and perpetual conservation and management. Issues to be addressed include, but are not limited to, methods to


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assure continuance of a water source to feed all wetland areas, enhancement of habitats and required buffer areas, restoration and enhancement of wetlands and environmentally sensitive habitats and required buffer areas, and fuel modification requirements to address fire hazard and avoid disruption of habitat values in buffers. 3. Archaeological Research Design consistent with Policies C5.1.1, C5.1.2, C5.1.3, C5.1.4, and C5.1.5 of this Coastal Element. 4. Water Quality Management Program consistent with the Water and Marine Resources policies of this Coastal Element. If development of the parcel creates significant amounts of directly connected impervious surface (more than 10%) or increases the volume and velocity of runoff from the site to adjacent coastal waters, the development shall include a treatment control BMP or suite of BMPs that will eliminate, or minimize to the maximum extent practicable, dry weather flow generated by site development to adjacent coastal waters and treat runoff from at least the 85th percentile storm event based on the design criteria of the California Association of Stormwater Agencies (CASQA) BMP handbooks, with at least a 24 hour detention time. Natural Treatment Systems such as wetland detention systems are preferred since they provide additional habitat benefits, reliability and aesthetic values.

5. Pest Management Plan that, at a minimum, prohibits the use of rodenticides, and restricts the use of pesticides, and herbicides in outdoor areas, except necessary Vector Control conducted by the City or County. 6. Landscape Plan for non-Open Space Conservation areas that prohibits the planting, naturalization, or persistence of invasive plants, and encourages low-water use plants, and plants primarily native to coastal Orange County. 7. Biological Assessment of the entire site.


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8. Wetland delineation of the entire site. 9. Domestic animal control plan that details methods to be used to prevent pets from entering the Open Space-Conservation areas. Methods to be used include, but are not limited to, appropriate fencing and barrier plantings. 10. Hazard Mitigation and Flood Protection Plan, including but not limited to, the following features:

Demonstration that site hazards including flood and liquefaction hazards are mitigated;

Minimization/mitigation of flood hazard shall include the placement of a FEMA-certifiable, vegetated flood protection levee that achieves hazard mitigation goals and is the most protective of coastal resources including wetland and ESHA;

Assurance of the continuance, restoration and enhancement of the wetlands and ESHA.

Residential: Residential development, including appurtenant development such as roads and private open space, is not allowed within any wetland, ESHA, or required buffer areas and area designated Open Space Conservation. Uses consistent with the Open Space Parks designation are allowed in the residential area. All development shall assure the continuance of the habitat value and function of preserved and restored wetlands and environmentally sensitive habitat areas within the area designated Open Space Conservation. Open Space Conservation:


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A. Wetlands: Only those uses described in Coastal Element Policy C 6.1.20 shall be allowed within existing and restored wetlands. All development shall assure the continuance of the habitat value and function of wetlands. Wetland Buffer Area: A buffer area is required along the perimeter of wetlands to provide a separation between development impacts and habitat areas and to function as transitional habitat. The buffer shall be of sufficient size to ensure the biological integrity and preservation of the wetland the buffer is designed to protect. A minimum buffer width of 100 feet shall be established. Uses allowed within the wetland buffer are limited to:

1) those uses allowed within wetlands per Coastal Element Policy C 6.1.20;

2) a vegetated flood protection levee is a potential

allowable use if, due to siting and design constraints, location in the wetland buffer is unavoidable, and the levee is the most protective of coastal resources including wetland and ESHA;

3) No active park uses (e.g. tot lots, playing fields,

picnic tables, bike paths, etc.) shall be allowed within 100 feet of wetlands preserved in the Open Space Conservation area.

B. Environmentally Sensitive Habitat Areas: Only uses dependent on the resource shall be allowed. Environmentally Sensitive Habitat Areas (ESHA) Buffers: A buffer area is required along the perimeter of the ESHA and is required to be of sufficient size to ensure the biological integrity and preservation of the ESHA


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the buffer is designed to protect. A minimum buffer width of 100 meters (328 feet) shall be established between residential development or active park use and raptor habitat within the eucalyptus groves. Uses allowed within the ESHA buffer are limited to:

1) uses dependent on the resource; 2) wetland and upland habitat restoration and

management; 3) vegetated flood protection levee that is the most

protective of coastal resources including wetland and ESHA;

4) In addition to the 100 meter ESHA buffer, grading shall be prohibited within 500 feet of an occupied raptor nest during the breeding season (considered to be from February 15 through August 31);

C. Other Areas Designated Open Space

Conservation Uses allowed within areas designated Open Space Conservation other than wetland and ESHA areas and their buffers are limited to:

1. Water Quality Natural Treatment System; 2. Passive recreational uses such as trails and benches for education and nature study; 3. Habitat enhancement, restoration, creation and management.

D. Habitat Management Plan shall be prepared for all areas designated Open Space Conservation which shall include restoration and enhancement of delineated wetlands, wetland and habitat mitigation, and establishment of appropriate buffers from development.

E. Protective Fencing: Protective fencing or barriers

shall be installed along any interface with


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developed areas, to deter human and pet entrance into all restored and preserved wetland and ESHA buffer areas.

SUGGESTED MODIFICATION No. 6 On page IV-C-60 and IV-C-61, under the heading Visual Resources, The Bolsa Chica Mesas, revise to include visual resources within Parkside area as follows: The northwestern side of the Bolsa Chica Ecological Reserve includes bluffs that rise to an upland area known as the Bolsa Chica Mesa. These bluffs are primarily under the County’s jurisdiction (only a small part of the bluff lies in the City) but are within the City’s Sphere of Influence for potential future annexation. The mesas constitute a significant scenic resource within the City’s coastal Zone. The 50 acre site (located west of and adjacent to Graham Street and north of and adjacent to the East Garden Grove Wintersburg Orange County flood Control Channel) known as the “Parkside” site affords an excellent opportunity to provide a public vista point. A public vista point in this location would provide excellent public views toward the Bolsa Chica and ocean. Use of the public vista point will be enhanced with construction of the Class I bike path along the flood control channel and public trails throughout the Parkside site. SUGGESTED MODIFICATION NO. 7 On page IV-C-70 add the following language in the first paragraph under the heading Environmentally Sensitive Habitats, to include reference to the wetland and Eucalyptus ESHA on the Parkside site: … The City’s Coastal Element identifies two three “environmentally sensitive habitat areas” within the City: 1) the Huntington Beach wetland areas, and 2) the California least tern nesting sanctuary, and 3) the wetlands and Eucalyptus ESHA on the Parkside site. (See Figure C-21for location of No. 1 and 2). The Coastal Element includes policies to protect and enhance environmentally sensitive habitat areas in accordance with the Coastal Act. Also, on page IV-C-72 add the following new section describing the Eucalyptus ESHA and wetlands on the Parkside site, after the paragraph titled California Least Tern Nesting Sanctuary:


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Parkside Eucalyptus ESHA and Wetlands (See Figure C 6a) Historically, this site was part of the extensive Bolsa Chica Wetlands system and was part of the Santa Ana River/Bolsa Chica complex. In the late 1890s the Bolsa Chica Gun Club completed a dam with tide gates, which eliminated tidal influence, separating fresh water from salt water. In the 1930s, agricultural ditches began to limit fresh water on the site, and in 1959, the East Garden Grove-Wintersburg Flood Control Channel isolated the site hydrologically. Nevertheless, wetland areas remain present at the site. There are existing and previously delineated wetlands, and areas that have been filled without authorization and are capable of being restored. These areas as well as their buffer areas are designated Open Space Conservation, and uses allowed within these areas are limited. In addition, on the site’s southwestern boundary, at the base of the bluff, is a line of Eucalyptus trees that continues offsite to the west. These trees are used by raptors for nesting, roosting, and as a base from which to forage. The trees within this “eucalyptus grove” within or adjacent to the subject site’s western boundary constitute an environmentally sensitive habitat area (ESHA) due to the important ecosystem functions they provide to a suite of raptor species. The Eucalyptus trees along the southern edge of the Bolsa Chica mesa are used for perching, roosting, or nesting by at least 12 of the 17 species of raptors that are known to occur at Bolsa Chica. Although it is known as the “eucalyptus grove”, it also includes several palm trees and pine trees that are also used by raptors and herons. None of the trees are part of a native plant community. Nevertheless, this eucalyptus grove has been recognized as ESHA by multiple agencies since the late 1970’s (USFWS, 1979; CDFG 1982, 1985) not because it is part of a native ecosystem, or because the trees in and of themselves warrant protection, but because of the important ecosystem functions it provides. Some of the raptors known to use the grove include the white tailed kite, sharp-shinned hawk, Cooper’s hawk, and osprey. Many of these species are dependent on both the Bolsa Chica wetlands and the nearby upland areas for their food. These Eucalyptus trees were recognized as ESHA by the Coastal Commission prior to its 2006 certification of this section of this LCP, most recently in the context of the Coastal Commission’s approval of the adjacent Brightwater development (coastal development permit 5-05-020). The Eucalyptus grove in the northwest corner of the site, although separated from the rest of the trees by a gap of about 650 feet, provides the same types of ecological services as do the rest of the trees bordering the mesa. At least ten species of raptors have been observed in this grove and Cooper’s hawks, a California Species of Special Concern, nested there in 2005 and 2006. Due to the important ecosystem functions of providing perching, roosting and nesting opportunities for a variety of raptors, these trees also constitute ESHA. These areas as well as their buffer areas and intermingled foraging areas are designated Open Space Conservation, and uses allowed within these areas are limited.


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The wetlands, Eucalyptus ESHA areas, buffer areas and intermingled raptor foraging areas, are designated Open Space Conservation to assure they are adequately protected. SUGGESTED MODIFICATION NO. 8 Add the following policy to the certified Land Use Plan, on page IV-C-100 as new policy C 1.1.3a:

C 1.1.3a The provision of public access and recreation benefits associated with private development (such as but not limited to public access ways, public bike paths, habitat restoration and enhancement, etc.) shall be phased such that the public benefit(s) are in place prior to or concurrent with the private development but not later than occupation of any of the private development.

SUGGESTED MODIFICATION NO. 9 Add the following policy to the certified Land Use Plan, on page IV-C-105 as new policy C 2.4.7:

C 2.4.7 The streets of new residential subdivisions between the sea and the first public road shall be constructed and maintained as open to the general public for vehicular, bicycle, and pedestrian access. General public parking shall be provided on all streets throughout the entire subdivision. Private entrance gates and private streets shall be prohibited. All public entry controls (e.g. gates, gate/guard houses, guards, signage, etc.) and restrictions on use by the general public (e.g. preferential parking districts, resident-only parking periods/permits, etc.) associated with any streets or parking areas shall be prohibited.

SUGGESTED MODIFICATION NO. 10 Modify the following existing LUP Water and Marine Resources policies as follows: C 6.1.6 (modify third and fourth paragraph) The City shall require that new development and redevelopment, as appropriate, employ nonstructural Best Management Practices (BMPs) and structural BMPs designed to


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minimize the volume, velocity and pollutant load of stormwater runoff, prior to runoff discharge into stormwater conveyance systems, receiving waters and/or other sensitive areas. All development shall include effective site design and source control BMPs. When the combination of site design and source control BMPs is not sufficient to protect water quality, structural treatment BMPs along with site design and source control measures shall be required. BMPs should be selected based on efficacy at mitigating pollutants of concern associated with respective development types. To this end, the City shall continue implementation of the Municipal Non Point Source Stormwater National Pollution Discharge Elimination System (NDPES) standards program permit (Santa Ana Regional Water Quality Control Board Order No. R8-2002-0010, dated January 18, 2002, or any amendment to or re-issuance thereof) of which the City is a co-permittee with the County of Orange through the Santa Ana Regional Water Quality Control Board. Per program parameters, continue to require a Water Quality Management Plan for all applicable new development and redevelopment in the Coastal Zone, … C 6.1.16 Encourage the Orange County Sanitation District to accept dry weather nuisance flows into the sewer treatment system prior to discharge. New developments shall be designed and constructed to minimize or eliminate dry weather nuisance flows to the maximum extent practicable. C 6.1.25 Require that new development and redevelopment minimize the creation of impervious areas, especially directly connected impervious areas, and, where feasible, reduce the extent of existing unnecessary impervious areas, and incorporate adequate mitigation to minimize the alteration of natural streams and/or interference with surface water flow. The use of permeable materials for roads, sidewalks and other paved areas shall be incorporated into new development to the maximum extent practicable. Add new policy C 6.1.30

Natural or vegetated treatment systems (e.g. bio-swales, vegetative buffers, constructed or artificial wetlands) that mimic natural drainage patterns are preferred for new developments over mechanical treatment systems or BMPs (e.g. water quality treatment plants, storm drain inlet filters).

SUGGESTED MODIFICATION NO. 11 Add the following policy to the certified Land Use Plan, on page IV-C-123, as new policy C 7.2.7


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Any areas that constituted wetlands or ESHA that have been removed, altered, filled or degraded as the result of activities carried out without compliance with Coastal Act requirements shall be protected as required by the policies in this Land Use Plan.

III. FINDINGS FOR APPROVAL OF THE LAND USE PLAN AMENDMENT WITH

SUGGESTED MODIFICATIONS The following findings support the Commission's approval of the Land Use Plan amendment with the incorporation of suggested modifications. The Commission hereby finds and declares as follows: A. Land Use Plan Amendment Description The proposed Local Coastal Program (LCP) amendment is a project-specific amendment designed to make possible a low density residential development up to a maximum 7 dwelling units per acre (dua) on a vacant, approximately 50-acre site comprising two legal lots, most of which is currently in agricultural production. Most of the site is currently uncertified, and the proposed LUP amendment would incorporate those areas into the City’s existing LUP and establish land use designations for those areas as well as for the currently certified parts of the site. The geographic area that is the subject of this proposed LUP amendment can be divided into three areas. See Exhibit C4. The largest section is an area of the City that was deferred certification by the Commission at the time the City’s Land Use Plan (LUP) was originally certified, in 1982, and that deferral carried through to the eventual LCP certification in 1985. The area of deferred certification (ADC) is approximately 40 acres.1 This amendment request proposes to certify this area by bringing it within the City’s existing LUP and applying land use designations to the area. Just northwest of the ADC is a 5 acre area that is currently certified (see footnote 1) and designated Open Space Parks. The City has resubmitted this area for certification with the same designations. Finally, there is a five acre area southwest of the ADC that was under the jurisdiction of the County of Orange until it was annexed by the City in 2004. Like the ADC, the City proposed to certify that area by bringing it within the broader City LUP, and land use designations are proposed for this area as well. The proposed amendment would allow the majority of the 1 The staff report and Commission findings from the 1982 LUP certification are not entirely clear about how much area was deferred certification. However, the City has clearly depicted the area subject to this LCP amendment (through the exhibit to its resolution) and clearly “resubmitted” any portions of that area that may currently be certified. For purposes of this staff report, we refer to the uncertified area as being 40 acres, and the acreage of the other areas subject to this LUP amendment are calculated accordingly. However, if the City does not accept the Commission’s certification with suggested modifications, and the current status quo remains, the Commission does not, by these descriptions, take any position on the issue of what area is currently certified and what area is ADC.


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site to be developed with low density residential development, and would also set aside a portion of the site for open space uses including parks and conservation. The amendment does not propose to create any new land use designations that are not already used in the existing LUP. Each of the land use designations proposed already exist within the certified Land Use Plan (LUP).. The land use designations that are proposed to be applied at the subject site have been applied elsewhere within the City’s certified LUP. However, because the site is an area of deferred certification or was recently annexed, no land use designation has ever been approved by the Commission at the subject site (with the exception of the 5 acre area designated and zoned Open Space-Parks). The current zoning of approximately 38 acres of the site is Residential Low Density, which has not been certified by the Commission. Specifically, the amendment request proposes the following land use designations (see exhibit C): Land Use

Acres

RL - 7 Low Density Residential-Maximum 7 units per acre 38.4 acres OS-P Open Space-Park 8.2 acres OS-C Open Space-Conservation 3.3 acres

As stated, the area of deferred certification is forty acres and the former County parcel is five acres. In addition to the 45 acre area, the City has also included in this amendment the five acre area that was not deferred certification. The certified area totals approximately 5 acres and is land use designated and zoned Open Space – Parks. Most of the certified five acre parcel is slope area and not usable as an active park area. The proposed amendment would retain that land use, and would expand that designation into the formerly deferred area, for a total of 8.2 acres of Open Space – Parks. This five acre segment brings the total size of the subject site to 50 acres (40 acre ADC, 5 acre former County parcel, 5 acre certified area). Of the approximately 5 acre former County area, 1.7 acres are proposed to become low density residential and 3.3 acres are proposed to become Open Space – Conservation (these figures are included within the totals in the chart above). In addition to establishing land use designations for the subject site, the amendment also proposes text changes to the LUP. The certified LUP includes a section of area-by-area descriptions. In this section of the LUP, the acreage figure is proposed to be changed to reflect the annexation of the former County parcel (from the current 44 acre figure to the proposed 50 acre figure). In addition, language describing the area as vacant and an area of deferred certification is proposed to be replaced with the following language:


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The Coastal Element land use designation for the vacant 45 acre area next to the East Garden Grove-Wintersburg Flood Control Channel was recently certified as RL-7 (Low Density Residential) and OS-P (Open Space – Park). In addition, approximately 5 acres of land was annexed from the County of Orange into the City of Huntington Beach. This area is designated RL-7 (Low Density Residential) and OS – C (Open Space – Conservation).

The subject area is currently comprised of two parcels: one 45 acre parcel (historic City parcel) and one 5 acre parcel (former County parcel). B. Site Description and History The site address is 17301 Graham Street, Huntington Beach, Orange County. It is bounded by Graham Street to the east, East Garden Grove Wintersburg Flood Control Channel (EGGWFCC) to the south, unincorporated Bolsa Chica area to the west, and existing residential uses to the north (along Kenilworth Drive). The development to the north is located within the City. The land to the north and to the east of the project is located outside the coastal zone. The areas located east of Graham Street, south of the EGGWFCC, and immediately north of the subject site along Kennilworth Drive are all developed with low density residential uses. To the northwest, a multi-family condominium development, Cabo del Mar, exists. To the west of the subject site, are undeveloped properties known as the Goodell property and Signal Landmark property. To the southwest of the subject site lies the Bolsa Chica wetlands restoration area. The 3.3 acre area on the subject site proposed to be land use designated Open Space Conservation is adjacent to the wetlands restoration area. West of the Goodell property is the site of the recently approved Brightwater development for 349 residential units (coastal development permit 5-05-020). The Brightwater site, the Goodell property, and the Signal Landmark property are located on the Bolsa Chica mesa. The majority of the subject site has been more or less continuously farmed since at least the 1950s. The majority of the site is roughly flat with elevations ranging from about 0.5 foot below mean sea level to approximately 2 feet above mean sea level. The western portion of the site is a bluff that rises to approximately 47 feet above sea level. Also, generally near the mid-point of the southerly property line is a mound with a height of just under ten feet. The EGGWFCC levee at the southern border is approximately 12 feet above mean sea level. Historically, the site was part of the extensive Bolsa Chica Wetlands system. In the southwest corner of the site, on the former County parcel, the City, property owner and Commission are in agreement that an approximately 0.45 acre wetland is present. In the 1980s, as part of the review of the County’s proposed LUP for the Bolsa Chica, the Department of Fish and Game (CDFG) in the document titled “Determination of the Status of Bolsa Chica wetlands” (as amended April 16, 1982), identified this area as “severely degraded historic wetland – not presently functioning as wetland”, and considered it within


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the context of the entire Bolsa Chica wetland system. Also, in 1989, the U.S. Environmental Protection Agency (EPA) published it's delineation of an approximately 8 acre wetland area in the northwest area of the site, near the base of the bluff. At the time of the EPA delineation, the area was being farmed. The topography of the agricultural field has been significantly altered since about 1998. As a result, the area delineated by EPA no longer is inundated or saturated for long periods except during exceptionally wet years. Water now tends to inundate an area near the flood control channel (designated “WP”) and an area at the base of the western bluff (designated “AP”), both of which have been identified as wetlands by the Commission’s staff ecologist. In addition, on the site’s western boundary, generally along the base of the bluff, are two groves of Eucalyptus trees. The trees are used by raptors for nesting, roosting, and as a base from which to forage. At the time the City’s LUP was first considered for certification, in 1981, the Commission denied certification, in part because the City proposed low density residential land use designation for the site that is the subject of the present amendment request and the Commission found the site to contain wetlands. The City re-submitted the LUP in 1982, but it made no change to the proposed low density residential land use designation for the subject site. Once again, the Coastal Commission in its action on the City’s proposed Land Use Plan, denied the certification for the MWD site (as the subject site was previously known), finding that it did contain wetland resources and that the designation of this parcel was an integral part of the ultimate land use and restoration program for the Bolsa Chica. The Commission findings for denial of the LUP for this area note the importance of this area in relation to the Bolsa Chica LCP. Of the 3.3 acres proposed to be Open Space – Conservation, none is located within the 40 acre area that was deferred certification. The site was being farmed at the time of the Commission’s denial of the low density residential land use designation for the subject site. A related coastal development permit application had been submitted for the subject site, 5-06-327 Shea Homes, but that application has since been withdrawn similar to prior applications (previously submitted and then withdrawn were application Nos. 5-06-021, 5-05-256 and 5-03-029 for the same development proposal), as well as an appeal of a City permit for the certified area (A-5-HNB-02-376). The appealed action remains pending, but the applicant waived the deadline for the Commission to act on the appeal. The Commission anticipates acting on the appeal in conjunction with a future permit application. The permit application and appeal request subdivision of the site to accommodate 170 single family residences, construction of the residences and associated infrastructure, preservation of the wetland identified on the former County parcel, and dedication and grading of active public park area. C. LCP History The LCP for the City of Huntington Beach, minus two geographic areas, was effectively


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certified in March 1985. The two geographic areas that were deferred certification were the bulk of the subject site (known at that time as the MWD site – see footnote 1), and an area inland of Pacific Coast Highway between Beach Boulevard and the Santa Ana River mouth (known as the PCH ADC). The subject site is northeast of the Bolsa Chica LCP area. At the time certification was deferred, the subject area was owned by the Metropolitan Water District (MWD). The site has since been sold by MWD and is currently owned by Shea Homes. Both of the ADCs were deferred certification due to unresolved wetland protection issues. Certification of the subject site was also deferred due to concerns that it might be better utilized for coastal-dependent industrial facilities, since MWD at that time had a “transmission corridor” parcel within the Bolsa Chica Lowlands that it indicated could be used to connect seawater intake facilities located offshore to facilities located on its switchyard parcel in the City of Huntington Beach, through the subject parcel. This is no longer a possibility, since the State has taken over the lowlands, and given the development of the areas surrounding the subject parcel since 1982 (and pending development that has already been approved), this site is no longer appropriate for coastal dependent industry. The PCH ADC was certified by the Commission in 1995. The wetland areas of that former ADC are land use designated Open Space – Conservation and zoned Coastal Conservation. No portion of the former PCH ADC is part of the current amendment request. A comprehensive update to the City’s LUP was certified by the Commission on June 14, 2001 via Huntington Beach LCP amendment 3-99. The City also updated the Implementation Plan by replacing it with the Zoning and Subdivision Ordinance (while retaining existing specific plans for areas located within the Coastal Zone without changes). The updated Implementation Plan was certified by the Coastal Commission in April 1996 via LCP amendment 1-95. Both the LUP update and the IP update maintained the subject site as an area of deferred certification. This LCP amendment was originally submitted as LCPA No. 2-02. LCPA 2-02 was subsequently withdrawn and re-submitted as LCPA 1-05. LCPA 1-05 was also withdrawn and re-submitted. The current amendment, LCPA 1-06 is the most recent submittal of the same amendment. No changes have been made to the amendment proposal during any of the withdrawal and re-submittals. The withdrawal and re-submittals were done in order to provide the property owner additional time to prepare and submit additional information regarding the presence of wetlands on-site and the use of the eucalyptus grove by raptors, and to allow Commission staff adequate time to review the additional information. LCPA 1-06 was received on April 13, 2006. On June 13, 2006, the Commission granted an extension of the time limit to act on LCPA No. 1-06 for a period not to exceed one year. The deadline for Commission action on LCPA No. 1-06 is July 12, 2007. D. Land Use Plan Format The City’s certified Land Use Plan includes a section of Goals, Objectives and Policies.


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These are organized by specific resources, including headings such as Land Use, Shoreline and Coastal Resource Access, and Recreational and Visitor Serving Facilities, among many others. These are the certified policies that apply City–wide within the coastal zone. Another section of the certified LUP is the Technical Synopsis. The Technical Synopsis is an area-by-area description of each segment of the City’s coastal zone. This section includes the descriptions of the existing land use designations. It also includes, after a narrative description of the sub-areas, Table C-2. Table C-2 is titled “Community District and Sub-area Schedule” and it provides greater specificity of what is allowed and encouraged within each subdistrict. This greater level of specificity provides a more detailed, site specific description than would be provided if the land use designation or general policies were considered alone. Table C-2 provides language on how general policies and designations would apply to specific sub areas of the coastal zone. Taken all together, these work well as the standard for development in the coastal zone. The format of the suggested modifications applies this same structure to the amendment site. Many of the issues addressed by suggested modifications would be required by the general LUP policies, but, consistent with the format of the LUP, the suggested modifications are intended to provide a greater level of detail that applies to the specific circumstances of the subject site. For example, although the City’s public access policies may be adequate to require a bike path along the EGGWFCC levee, the LUP format calls the reader’s attention to the fact that, at this particular site, a bike path is appropriate and is therefore being required in this amendment. If one were working from the policies alone, some opportunities at certain sites may not be recognized. The LUP’s existing format significantly maximizes the protection of resources within the coastal zone. The suggested modifications carry out that same format in order to assure protection of resources at the amendment site. E. Approval of the Land Use Plan Amendment if Modified 1. Incorporation of Findings for Denial of Land Use Plan as Submitted The findings for denial of the Land Use Plan as submitted are incorporated as if fully set forth herein. The Commission denied the LUPA as submitted at the Commission’s May 10, 2007 hearing. The findings for denial of the LUPA as submitted that were provided in the May 2007 recommendation are found in Appendix A, attached to this staff report (these findings may need revision to reflect the Commission's action in May 2007). Any required revised findings will be presented to the Commission for adoption at a later hearing. 2. Wetland The proposed amendment includes an Open Space Conservation designation on a 3.3 acre area within the former County parcel. The 3.3 acre area includes an undisputed wetland area (see 3rd revised exhibit NN). The proposed Conservation designation is appropriate for this area. However, additional wetland areas exist at the subject site that are not proposed to be protected with the Open Space Conservation (OSC) designation


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and are addressed in the following findings. Wetlands often provide critical habitat, nesting sites, and foraging areas for many species, some of which are threatened or endangered. In addition, wetlands can serve as natural filtering mechanisms to help remove pollutants from storm runoff before the runoff enters into streams and rivers leading to the ocean. Further, wetlands can serve as natural flood retention areas. Another critical reason for preserving, expanding, and enhancing Southern California’s remaining wetlands is because of their scarcity. As much as 75% of coastal wetlands in southern California have been lost, and, statewide up to 91% of wetlands have been lost. Section 30121 of the Coastal Act states:

“Wetland” means lands within the coastal zone which may be covered periodically or permanently with shallow water and include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, and fens.

The Commission has further specified how wetlands are to be identified through regulations and guidance documents. Section 13577(b)(1) of the Commission’s regulations states, in pertinent part:

Wetlands shall be defined as land where the water table is at, near, or above the land surface long enough to promote the formation of hydric soils or to support the growth of hydrophytes … For purposes of this section, the upland limit of a wetland shall be defined as:

(A) the boundary between land with predominantly hydrophytic cover

and land with predominantly mesophytic or xerophytic cover; (B) the boundary between soil that is predominantly hydric and soil that

is predominantly nonhydric; or (C) in the case of wetlands without vegetation or soils, the boundary

between land that is flooded or saturated at some time during years of normal precipitation, and land that is not

Section 30231 of the Coastal Act states, in pertinent part:

The biological productivity and the quality of … wetlands … appropriate to maintain optimum populations of marine organisms and for the protection of human health shall be maintained and, where feasible, restored through, among other means, … preventing depletion of ground water supplies and substantial interference with surface water flow, maintaining natural vegetation buffer areas that protect riparian habitats, …

Section 30233(a) of the Coastal Act states:


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The diking, filling, or dredging of open coastal waters, wetlands, estuaries, and lakes shall be permitted in accordance with other applicable provisions of this division, where there is no feasible less environmentally damaging alternative, and where feasible mitigation measures have been provided to minimize adverse environmental effects, and shall be limited to the following:

1) New or expanded port, energy, and coastal-dependent industrial facilities, including commercial fishing facilities.

2) Maintaining existing, or restoring previously dredged, depths in existing navigational channels, turning basins, vessel berthing and mooring areas, and boat launching ramps.

3) In open coastal waters, other than wetlands, including streams, estuaries, and lakes, new or expanded boating facilities and the placement of structural pilings for public recreational piers that provide public access and recreational opportunities.

4) Incidental public service purposes, including but not limited to, burying cables and pipes or inspection of piers and maintenance of existing intake and outfall lines.

5) Mineral extraction, including sand for restoring beaches, except in environmentally sensitive areas.

6) Restoration purposes. 7) Nature study, aquaculture, or similar resource dependent activities.


(a) New residential … development … shall be located … where it will not have significant adverse effects, either individually or cumulatively, on coastal resources.

In addition, the City’s LUP includes Policy C 6.1.20, which limits filling of wetlands to the specific activities outlined in Section 30233 of the Coastal Act. And LUP policy C 7.1.4 states, in pertinent part: “Require that new development contiguous to wetlands or environmentally sensitive habitat areas include buffer zones.” The Coastal Commission staff ecologist has reviewed considerable amounts of information regarding the extent of wetlands at the site, much of which are listed in his memorandum which is attached as Exhibit K. The property owner has submitted numerous documents intended to demonstrate that there are no wetlands on site, beyond the wetlands recognized on the former County parcel (i.e. the CP wetlands). Local citizens have submitted documents intended to demonstrate that there are significantly more wetlands on site than that recognized in the CP wetlands. These citizens are concerned by the prospect that development may be allowed to occur within wetlands at the site if the LUP amendment were approved as submitted (and as reflected in the related coastal development permit application 5-06-327, Shea Homes, and appeal A-5-HNB-02-376). In addition, the staff ecologist has reviewed historical information regarding the subject site


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and surrounding area. All this information has been reviewed by the staff ecologist and is considered in his memoranda attached as Exhibits K, LLL, and QQQ to this staff report and are hereby incorporated into these findings in their entirety. The Commission’s Mapping/GIS Program Manager has also reviewed numerous historic and more recent aerial photographs and topographical information. The purpose of the Mapping/GIS Program Manager’s review was to identify changes due to landform alterations such as grading and filling, and to attempt to delineate disturbed areas dating from the time the Coastal Commission’s jurisdiction began at the project site (1/1/77). The results of his review are reflected in his memoranda dated 7/2/07 and 10/25/07, attached as exhibits MMM and RRR of this staff report and which are hereby incorporated into these findings in their entirety. In brief summary, results of the review of the aerial photos and topographic maps indicates that topography has changed on site, particularly in the area delineated by the EPA as wetlands in their 1989 publication (generally in the northwest area of the site). Changes are also identified in the area of the former equestrian facility (generally in the southwestern portion of the site between the CP and WP wetland areas). In the aerial photo taken on May 21, 1970, the western extension of Slater Avenue is visible just north of the flood control channel embankment on the subject property. The 1970 photo establishes a pre-Proposition 20, pre-Coastal Act baseline for gauging the extent of land alterations and other changes that occurred later (post Coastal Act, 1/1/77). A clearly distinguishable topographic depression in the area of the EPA wetlands is depicted on topographic maps from 1970, 1980, and 1996. However, by 2005 that depression was no longer present in the same configuration. The lowest area had been displaced to the west abutting the base of the mesa and the historic EPA wetland area had been relatively flattened. In the area of the former equestrian facility, the aerial photos and topographic maps also show disturbance. In the images from 1981 on, fill is evident in the area that was developed as an equestrian facility. It appears that fill first appears in conjunction with establishment of the equestrian facility, with additional fill being placed over the life of the facility. The extent of fill has migrated, primarily to the north, but also, to some extent, to the southwest. Existing WP and AP Wetlands With regard to existing wetlands, based on his review of the available data, the Commission’s staff ecologist determined that additional wetland areas exist at the subject site. The Commission’s staff ecologist considered first questions of whether additional wetland areas exist at two specific areas of the subject site. The results of the staff ecologist’s review regarding the presence of additional wetland at the two specific sites (described below as areas AP and WP) are reflected in his Memorandum, dated 7/27/06, attached as exhibit K to this staff report. For the reasons listed in that memorandum and below, the Commission concurs and adopts its ecologist’s conclusions with regard to these


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two specific areas of additional wetlands. The two specific areas of additional wetland at the site are referred to as the Wintersburg Pond or WP, which is adjacent to the East Garden Grove Wintersburg Flood Control Channel (EGGWFCC) levee along the southern edge of the site; and the Agricultural Pond or AP, located near the base of the bluff along the western edge of the property. The proposed LUP amendment would designate these wetland areas Low Density Residential and Open Space Parks. These land use designations allow grading, and the construction of houses, roads, and active parks, which would necessitate the dredging and filling of the wetlands. Such uses within wetlands are inconsistent with Section 30233 of the Coastal Act and with LUP Policy C 6.1.20 which limits filling of wetlands to the specific activities outlined in Coastal Act Section 30233. The memorandum dated July 27, 2006 from the Commission’s staff ecologist states: “The available data suggest that portions of the agricultural field … are inundated or saturated at a frequency and duration sufficient to support a preponderance of wetland plant species … Such areas meet the definition of wetlands under the Coastal Act and the Commission’s Regulations.” There are three factors or “parameters” that are used to determine whether or not a wetland exists: the presence of hydrophytic vegetation, the presence of hydric soils, and the presence of wetland hydrology. The Commission finds an area to be wetland if any one of the three parameters is present. Usually, the presence or absence of hydrophytes or hydric soils is sufficient to determine whether a wetland exists. However, those two indicators are not necessary, as they do not actually define a wetland. Rather, an area is defined as a wetland based on whether it is wet enough long enough that it would support either of those two indicators. Therefore, the removal of vegetation by permitted activities does not change a wetland to upland. Section 30121 of the Coastal Act provides the statutory definition of wetlands: “…lands within the coastal zone which may be covered periodically or permanently with shallow water and include saltwater marshes, freshwater marshes …” Section 13577(b)(1) of the California Code of Regulations provides the regulatory definition of wetlands: “… land where the water table is at, near, or above the land surface long enough to promote the formation of hydric soils or to support the growth of hydrophytes” Thus, the Coastal Act and the Regulations provide that a determination of the presence of wetlands may be made based on whether an area demonstrates the presence of sufficient water to promote hydric soils or to support hydrophytes, whether or not the soils and vegetation are present under existing conditions. Because this area was historically a salt marsh and because the site has been historically farmed and continues to be farmed as of the adoption of these findings, the typically used field indicators cannot be relied upon. The grading and repeated discing and plowing associated with the existing agricultural use destroys hydric soil features and prevents the development of natural vegetation. Nevertheless, the evidence presented in the ecologist’s memo and summarized below indicates that the AP and WP areas are wet enough long enough to “support the growth” of hydophytes. Thus, the WP and AP areas


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meet the definition of wetlands contained in the Commission’s regulations. Furthermore, the WP and AP also meet the Coastal Act definition of wetlands in that it is “periodically covered in shallow water.” The wetland conclusion is based on two lines of evidence: (1) an examination of the vegetation at a nearby location that is similar in history, physical characteristics, and hydrology to the depressions in the agricultural field,2 and (2) an informed estimate of the frequency of continuous inundation for long duration (at least 7 days) at various sites. Areas WP and AP were matched by the Commission’s staff ecologist, with wetland areas on the County parcel that were similar in elevation and topography. Inundation in the agricultural areas and at the reference wetlands was similar in pattern, further suggesting that the latter is a good proxy for the former. Therefore, since the dominant vegetation at the reference areas is mostly comprised of wetland species, it is reasonable to expect that the agricultural areas WP and AP would also support a predominance of hydrophytes in the absence of farming (i.e. that they are wet enough to support such vegetation). Although, prior to about 1990, inundation hadn’t been apparent in the depression adjacent to the EGGWFCC (WP area) and inundation occurred there less frequently than in the area of the AP, in recent years, ample evidence exists to show that WP is inundated for long duration following significant rainfall. Establishing the extent of wetlands at the site, given its history of farming and disturbance, is not straightforward. The best approach for this site regarding WP and AP known to the Commission at this time is to base the wetland boundary on current conditions as inferred from recent topography and the available photographs of recent inundation. EPA Delineated Wetland (1989) Prior to about 1990, it appears from aerial photographs that significant inundation was generally confined to the area delineated as wetland (just east of the area of the AP) by the EPA in its 1989 publication. Based on analysis of aerial photographs dating from 1958 to 1985, the property owner’s biological consultant concluded that inundation in that area tended to have a different footprint in different years and, based on this observation, he argued that no particular area should be identified as a wetland. However, all his estimated wetland polygons in the western portion of the agricultural field appear to fall

2 In the second to last footnote in Dr. Dixon’s memo, he notes that the topography of the reference site is actually similar to that of WP as it existed in 2003, not at present. More recently a box plough was used to fill area WP, which is apparent in 2006 topographic maps. The box plough fill is under investigation by Commission staff as an alleged violation. Accordingly, relying on the topography prior to the alleged violation yields the appropriate comparison. Additionally, the hydrology section of Dr. Dixon’s memo states that LSA biologists stated that WP didn’t pond until after about 1973. However, if this is due to changes in topography that occurred before 1973, it is again appropriate to focus on the post-1973 topography, as that represents current conditions. Conditions prior to 1973 may be irrelevant if topographical conditions changed prior to 1973, as such changes were pre-Coastal Act and therefore not Coastal Act violations.


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within the area delineated by the EPA. In the absence of wetland vegetation, the drawing of wetland boundaries is an approximate exercise based on a small and haphazard collection of aerial photographs or ground observations and estimates of topography. Given the approximate nature of such delineations, it appears the consultant’s results are actually additional evidence that the EPA delineation was reasonable at the time it was made. However, it appears that the area of the EPA delineation (8.3 acres) was based on extra-normal site circumstances. As described in the October 25, 2007 memorandum prepared by the Commission’s staff ecologist, the 8.3 acre estimate of the wetland size appears to have been based largely on observations made during the period when increased runoff from off-site was temporarily directed onto the subject site. This appears to have occurred during the construction of the Cabo del Mar condominiums on the adjacent property from sometime after 1978 until sometime before 1986. If one considers the area delineated by EPA under normal conditions (i.e. no excess off site drainage directed on-site), a more likely estimate for the wetland area can be made. Based on the Bilhorn (1987) and EPA (1989) estimates of wetland area during the period of construction of the Cabo del Mar condominiums, estimates of water availability during the period of interest, and the estimated size of ponded areas in available photographs, a reasonable estimate of the average area that ponded is 4.0 acres. The 1987 and 1989 studies by Bilhorn and EPA were based on field work done prior to 1987. The October 25, 2007 memorandum is attached to this staff report as exhibit QQQ and is hereby incorporated by reference as though fully set forth herein. As discussed in detail below, the EPA wetland is no longer present. Existing CP Wetland Substantial evidence suggests that the wetland area of the CP is larger than what has been recognized in the LCP amendment submittal. The wetland area recognized by the City and property owner on what is known as the former County parcel totals 0.45 acres. However, additional CP area should be included in the CP wetland acreage. This wetland area was filled without authorization from the Commission. In a letter dated 9/7/82 from the Department of Fish and Game (DFG) to Coastal Commission staff, the DFG determined the area, prior to placement of the unpermitted fill, to be wetlands, and recommended removal of the fill and revegetation (see exhibit BBB). Pursuant to Coastal Development Permit No. 5-82-278, the unpermitted fill was to have been removed and the area revegetated. Based on comparison of topographic (1980) and vegetation maps (Vegetation Communities, Exhibit 26 of the Bolsa Chica Land Use Plan, dated January 1982) created before the unpermitted fill was placed, with topographic maps (1986 and 1982) created subsequent to the time the fill was placed, the elevation of the subject area was increased by at least 2 feet. Because of the unpermitted fill, the pickleweed within the filled area was no longer viable. Development approved pursuant to Coastal Development Permit 5-82-278 included removal of the unpermitted fill to an elevation of approximately three inches below the grade of the existing adjacent pickleweed stand [area of the recognized CP


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wetland] and revegetation of the area with one or more of the following species: pickleweed, spiny rush, frankenia, sea lavender, and shoregrass. However, elevations in the fill area are not consistent with pre-fill elevations. Rather, topographic maps prepared subsequent to the unpermitted fill and subsequent to the issuance of Permit 5-82-278 depict the fill area at an elevation at least two feet above the adjacent CP wetland. This leads to the conclusion that removal of the fill and revegetation never occurred. Were it not for this unpermitted development, the area would have remained wetlands area. Unpermitted development cannot be used as a basis to justify development in areas where, were it not for the unpermitted development, such development would not be allowed. Thus, consideration of appropriate land use designation must consider site conditions as if the unpermitted development had not occurred. Therefore, this area is considered a wetland. As proposed, the amendment would allow land uses like residential and related uses, like roads, within wetland areas. Thus, the proposed land use designation is not consistent with Section 30233 of the Coastal Act. Potential Unpermitted Development Unpermitted development cannot be used as a basis to justify development in areas where, were it not for the unpermitted development, such development would not be consistent with the requirements of the Coastal Act. The site, as has been mentioned, has historically been farmed. Discerning changes in topography on the order of a few feet to fractions of a foot over the course of 30 years and ascertaining that such changes are not due to normal farming activities at a site where farming activities are on-going is problematic. Nevertheless it is important to assure that if wetland areas have been eliminated due to unpermitted activity, that those areas are considered as if the unpermitted activity had not occurred. Thus, if areas that would have met the Commission’s definition of a wetland have been altered such that they no longer meet that definition only due to unpermitted activity, that area must be afforded the same protection as would be required had the unpermitted activity not illegally altered the wetlands. It has been suggested that the land alterations in the area of the EPA delineated wetland were the result of “normal farming activity” and so could not be considered unpermitted development in terms of the need for a coastal development permit. However, any activities, whether normal farming activities or other, that would result in the fill of wetlands cannot be exempt from the need to obtain approval of a coastal development permit. Regarding “leveling of land as a normal farming activity”, a joint EPA and Department of the Army memorandum3 states: “grading activities that would change any area of water of the United States, including wetlands, into dry land is not exempt.” Furthermore, Section 323.4(a)(1)(iii)(D) of the Army Corps of Engineers regulations pertaining to discharge of dredged or fill material into the waters of the United States, states that the term plowing “does not include the redistribution of soil, rock, sand or other surficial material in a manner which changes any area of the water of the United States to dry land.” The Commission 3 Memorandum: Clean Water Act Section 404 Regulatory Program and Agricultural Activities; United States EPA and United States Department of the Army, May 3, 1990


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agrees and finds that if a wetland is filled and no coastal development permit has been obtained, the fill activity constitutes unpermitted development. In a letter dated July 9, 2007 submitted to the Commission at its July 2007 hearing from the California Farm Bureau Federation (see exhibit XXX), raises three issues regarding the LCPA staff report: 1) staff’s recommendation relies on an EPA study, but there may no longer be any federal jurisdiction authority based on more recent EPA guidance documents; 2) the subject site’s status of “prior converted cropland”; and 3) what constitutes “normal farming activities.” Regarding more recent EPA guidance documents the letter states: “In light of new USEPA and USACOE memorandums and the Staff Report’s reliance on these agencies’ findings, there may no longer be any federal jurisdictional authority over the disputed wetlands. In turn, this may alter key conclusions in the staff report.” The documents referenced describe procedures to be followed in determining when the EPA/USACE have jurisdiction in implementing the Clean Water Act. The guidance documents assist only in determining when a Section 404 permit is necessary from the EPA and have no bearing on a past wetland delineation and cannot be interpreted as negating a past delineation. Furthermore, one of the referenced documents (Memorandum: Clean Water Act Section 404 Regulatory Programs and Agricultural Activities) states: “For example, if a farmer has been plowing, planting and harvesting in wetlands, he can continue to do so without the need for a Section 404 permit, so long as he does not convert the wetlands to dry land [emphasis added].” Thus, even by the standards cited by the Farm Bureau, farming that converts a wetland to dry land is not exempt from the requirement to obtain Section 404 review. Furthermore, the 1989 EPA wetland delineation assessed the presence of wetlands and found that wetlands did exist at the site. Commission staff have reviewed that study as well as a great deal of other information (as cited in the Commission staff memoranda) and, as is outlined in the staff memoranda, found the EPA wetland delineation valid (with adjustments as described elsewhere). A change in other agencies’ guidance documents has no bearing on the results of the earlier wetland delineation. The letter also raises the question of whether the subject site should be considered “prior converted cropland”. The Farm Bureau letter states: “Farm Bureau also believes that the Coastal Commission should apply and document the site specific facts of this issue against USACOE RGL 90-7 and USEPA’s applicable regulations and guidance documents regarding prior converted cropland.” The letter further states: “However, attention should be given to the disputed area’s present and recent past characteristics and use as prior converted crop land.” The letter refers to a November 20, 1998 letter from the Natural Resource Conservation Service designating the subject site as prior converted cropland. That November 20, 1998 Natural Resource Conservation Service letter states that it based its determination that the site is “prior converted cropland” on two factors: 1) the site has been farmed prior to 1985, and, 2) designation of the property as “Prior Converted Cropland” by the Army Corps of Engineers in 1992, review of their designation in 1998 and


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an independent report from Lisa Kegarice of Tom Dodson and Associates in December of 1997 have determined that this property meets the criteria for Prior Converted Cropland.” However, the Commission’s staff ecologist’s memo dated July 27, 2006 (exhibit K) includes review of the Natural Resource Conservation Service’s 1998 letter (among many other documents) and addresses the issue of “prior converted cropland” at length. As described in greater detail in the Commission ecologist’s 7/27/06 memo, the decision to dismiss the site from regulation under the Clean Water Act, was based on the faulty work contained in the Kegarice report of 1997 and the fact that errors in that report have been perpetuated without challenge until now. Furthermore, designation of a site as prior converted cropland simply allows on-going farming to continue. The proposed LUP amendment would not continue farming at the site, so that designation, even if it had been accurately applied, is moot when considering allowing non-farming uses such as the proposed residential and active park uses. Finally, the Farm Bureau letter questions Commission staff’s assessment that activities that have occurred on site are not normal farming activities. On-going farming activities, such as plowing and discing, that are consistent with the continuance of existing wetlands constitute normal farming activities. However, methods, such as grading, that go beyond normal farming activities have occurred on site, resulting in the loss and/or fill of wetlands, and do not constitute normal farming activities. Moreover, members of the public have also presented evidence to suggest that activities that are employed at the site do not constitute normal farming activities. And, they have argued, those activities have, over time, substantially reduced the presence and extent of areas that would otherwise have met the Coastal Act definition of wetland. Such activities include, but may not necessarily be limited to, use of a bulldozer and a box plough to move earth in the area of the agricultural field. The Commission concurs that use of such earth moving equipment, particularly when it results in the fill of wetlands, is not typically associated with normal farming activities. Development, including earth movement on a scale that requires a bulldozer or box plough, in an area of known wetland presence (i.e. 1989 EPA wetland delineation; Commission’s 1982 and 1984 actions deferring certification of the site; DFG Study of Wetlands at Bolsa Chica), without an approved coastal development permit constitutes unpermitted development. Also, other non-farming activities have historically occurred on the site. In 1982 the Commission approved the above mentioned coastal development permit No. 5-82-278. The approved development was located near the southwest corner of the site, straddling the former City/County boundary (see exhibit BBB). Fill (1,500 to 3,000 cubic yards) for an expanded parking area was explicitly approved as part of that coastal development permit. Evidence shows that only the area of the expanded parking lot that was explicitly described in the approved permit was approved for placement of fill under that coastal development permit approval. If so, any additional fill in the area of the remaining equestrian facility would constitute unpermitted fill. The development described in the application for the coastal development permit requests


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the following: placement of mobile home as a caretaker facility; additional stable facilities [emphasis added]; grading and fill of a parking facility for approximately 50 cars; removal of fill and revegetation [described previously]; and placement of a fence around the revegetated area. The City’s 1981 Conditional Use Permit for the project (CUP No. 81-13) refers to a request to expand [emphasis added] an existing horse facility. The City’s CUP staff report states: “The existing [emphasis added] temporary horse stable on the site has been in operation since 1966.” and “According to the applicant most of the existing [emphasis added] facilities were installed prior to 1977. These characterizations of portions of development existing prior to the Commission’s jurisdiction in the area (which began on 1/1/77) were carried over into the Coastal Commission staff report for 5-82-278. However, review of aerial photos indicates that the equestrian facility was not present until 1978, after the Commission’s jurisdiction in the area began. Both the City and County of Orange planning staff have reviewed their records for permits for the stable facility that predate 1978, but have found no permits earlier than 19814. Regardless of whether or not any portion of the equestrian facility pre-dates the Coastal Act, review of historic aerial photos and topographic maps indicate subsequent actions at the subject site have resulted in fill beyond the footprint and/or at higher elevations than what was approved under coastal development permit 5-82-278. Any fill placed on the site, other than that specifically approved for the 50 space parking area approved under cdp 5-82-278, is unpermitted. It should be noted that a coastal development permit application was submitted in 1993, 5-93-376 (Hole in the Wall Stable). The 1993 application requested approval of continued use of the existing equestrian facility (formerly Smokey’s Stables). At that time Commission staff determined the request was exempt from the need for a coastal development permit because it simply requested continued use of an existing facility, no construction or grading/fill was proposed (see exhibit DDD). It appears the request was mischaracterized in that the equestrian facilities present in 1993 were larger still than even those requested in 1982. In addition, at the direction of Commission staff, the current property owner submitted a coastal development permit application for discing the site in 1999 (5-99-303, Shea Homes). In response to that application, staff informed the applicant at that time that no permit was needed “based on the property’s prior usage for agricultural purposes.” (see exhibit NNN). However, staff’s determination that no permit was necessary was based on a 1998 letter from CDFG (Exhibit YYY), stating that, based on a consultant’s report, no wetlands were present and the likelihood of wetland restoration on site was slim. But that CDFG assessment relied, not on an actual wetland delineation by CDFG, but rather on the flawed analysis contained in a wetlands assessment of the site conducted by Tom Dodson

4 The County approved CUP No. 80-92 to permit the establishment of a commercial stable on the County portion of the site on 2/26/81.


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and Associates (Kegarice, 1997)5. Thus, staff’s determination that no permit was needed was in error, based on faulty information prepared by others. Furthermore, staff’s determination that no permit was necessary was also based on the characterization by the applicant (Shea Homes) that the development requested was discing of the site. The letter from staff indicating no permit was necessary responded only to the request to continue shallow discing of the farmed area. However, the site has been subjected to farming practices that go beyond what can be considered “normal farming activities” and which were not described as part of the project description in the permit application. Supporting this conclusion are recently documented incidents at the site that include use of a bulldozer and a box plough. In addition, in his memorandum dated 7/2/07 (exhibit MMM), regarding the history of the EPA wetland area, the Commission’s Mapping/GIS Program Manager concludes dramatic changes have occurred in this decade. The 7/2/07 memorandum states “Although agriculture has gone on in this area since the 1930’s, the elevations have consistently indicated a topographic depression here. Aerial photography shows repeated instances of ponding in the area. In this decade the topography has changed dramatically, with the obliteration of the depression in its original location and the creation of a smaller, narrower depression at the western margin of the agricultural field.” However, other than permit 5-82-278 and the two circumstances mentioned above, no other permit history for the site has been discovered. The question of whether development occurred without benefit of an approved coastal development permit is particularly important due to the history of wetlands on site. There is evidence to suggest that areas where topography has been modified may have supported wetlands. If wetlands were present at the time of past development, the Coastal Act requires that those wetlands be protected. Review of historic aerial photos of the site, comparison of various historic and recent topographic maps of the site, photos of earth moving equipment not normally associated with farming activities, and earth moving in the area of previously delineated wetlands (i.e. EPA) also raise significant questions as to whether the site has been altered in ways that would have required a coastal development permit. Construction of the Cabo del Mar condominiums – outside the coastal zone, but adjacent to the subject site – appears to have included development that extended onto the subject site and thus, within the coastal zone. Prior to the development of the Cabo del Mar condominiums (c. 1983 – 1985), a portion of the runoff from the approximately 22-acre site drained onto the Parkside property and contributed to the hydrology of the wetland mapped by EPA. At some point after the Cabo del Mar construction, the drainage was directed to new drain pipes that were installed across the subject site. Section 30231 of the Coastal Act requires that all wetlands be maintained by preventing substantial interference with surface water flow. Construction of the drainage pipes impacted one source of water that fed the EPA wetland, inconsistent with Section 30231 of the Coastal

5 See exhibit K, Memo from the Commission’s staff ecologist explaining why that analysis is flawed and does not reflect actual site conditions.


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Act. Such development would have required a coastal development permit from the Coastal Commission. However, no such permit was obtained. Regarding the EPA wetland area, evidence suggests that this wetland relied on surface water rather than groundwater. Any loss of runoff would have a negative effect on the wetland that was historically present in the EPA area and on the wetlands that are currently present. Open Space Conservation Area In summary, in order to be most protective of wetlands, the additional wetland area, beyond what is proposed to be designated Open Space Conservation, must be recognized and appropriately designated under this LUP amendment. At a minimum, that would include the AP, WP and expanded CP areas, and portions of the wetland area identified by the EPA in a document published in 1989. Although it is very likely the area between the former equestrian facility and the WP would be considered wetland area now were it not for unpermitted development, that determination cannot be conclusively made. Nevertheless, the AP, WP, expanded CP and the 4 acre area within the EPA delineated area and their respective buffers, when taken together with the area to be designated Open Space Conservation due to ESHA resources, the required buffer, and raptor foraging area, increase the area that must be designated Open Space Conservation. The area delineated by the EPA as wetland totaled approximately 8.3 acres. However, as described in the October 25, 2007 memorandum prepared by the Commission’s staff ecologist, the 8.3 acre figure appears to have been based on observations during a period when construction activities on an adjacent property resulted in a temporary direction of excess off-site drainage onto the subject site. Several lines of evidence suggest that a reasonable estimate for the size of the wetland before and after the construction is about 4.0 acres. Unpermitted development resulted in the loss of the 4-acre EPA wetland area. Section 30233 of the Coastal Act requires that loss of wetlands due to fill must be mitigated. The Commission typically requires mitigation at a ratio of 4:1 (area of mitigation to wetland area lost). The loss of EPA wetland due to unpermitted activity must be mitigated. However, the unpermitted land manipulations that resulted in the loss of the EPA wetland area also contributed to the creation of wetlands in the area of the WP and AP. Thus, it would be appropriate to allow the area of the WP (0.95 acres) and the area of the AP (0.61 acres) to be applied toward the total area of wetland creation necessary to mitigate the loss of the 4-acre EPA wetland area (4 acres lost x 4 = 16 acres of wetland area to be created; 0.95 acres [WP] + 0.61 acres [AP] = 1.56 acres; 16 – 1.56 acre = 14.44 acres of wetland area still to be created). Therefore, in addition to the area of WP and AP, an additional 14.44 acres of wetland creation on site would be required to mitigate the loss of the 4-acre EPA wetland. Thus, area that must be preserved on site includes the AP, WP and expanded CP areas, EPA wetland area (as adjusted and mitigated), ESHA areas, wetland and ESHA buffer


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area, and raptor foraging mitigation area. Preservation and/or restoration of the AP, WP, expanded CP and restored and mitigated EPA wetlands may require supplemental water. The Commission finds the designation should apply across the western portion of the subject site to adequately protect the significant coastal resources present on-site and downstream of the subject property. More specifically, the Open Space Conservation designated area would extend from the southern property line along the EGGWFCC from a point east of the necessary buffer for the WP area, across the site to the northern property line at a point east of the necessary buffer for the EPA delineated wetlands and east of the necessary buffer for the northern Eucalyptus grove. The area to be designated Open Space Conservation is depicted on 3rd revised Exhibit NN. Although there are pockets of land within the area the Commission finds must be designated OS-C that are not wetland, ESHA or their necessary buffer areas, they are isolated fragments that could not reasonably be developed for residential or active park uses without significant disturbance to the other resource areas nearby. These intermingled areas were known to be wetlands in the 19th and early half of the 20th century and there remains some unresolved question as to whether some of that area would have delineated as wetland more recently if more data were available and/or past land alteration hadn't occurred. Furthermore, taken together with the area that must be designated OS-C to protect ESHA, wetland and their buffers, as well as area necessary for raptor foraging mitigation, there is really no developable area within the area to be designated OS-C. Therefore, that entire area is most appropriately designated as OS-C. In addition, substantial evidence suggests that other wetland areas existed on site prior to what appears to have been unpermitted development. The Commission typically requires mitigation for wetland impacts, generally at a ratio of 4:1. If wetland areas beyond those specifically described above on site were lost due to unpermitted activity, not only would the wetland areas need to be protected and restored, but mitigation for the interim loss of habitat values would be required. The amount of wetland impact and the need for mitigation would most appropriately be determined at the time a coastal development permit for the site is considered. However, it is imperative that land use designations approved under this LCP amendment not preclude appropriate wetland preservation, restoration and mitigation on site. To that end, it is important to assure that adequate area is land use designated so that such activities/uses (i.e. preservation and mitigation) are viable and in no way precluded. The most appropriate land use designation for wetland preservation, restoration, and mitigation is Open Space Conservation. In order to assure that enough area is set aside for all required future wetland preservation, restoration, and mitigation (as well as the area necessary to protect on site ESHA resources described elsewhere) the Commission finds that only if modified consistent with the land use designations depicted on 3rd revised exhibit NN, can the proposed LUP amendment be found to be consistent with Sections 30233 and 30231 of the Coastal Act which require protection of wetlands. Moreover, the entire area was originally deferred certification due to the historic presence


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of wetland on site. In deferring certification originally, the Commission found:

North Properties of the Bolsa Chica (Between Wintersburg Channel & base of Bluffs) (MWD Site #1 [virtually identical to the subject site of current LCP amendment6]) The LUP designates this site for low density residential uses. No modifications were made in the LUP from the previous denial by the Commission. The Commission found in its “Preliminary Wetlands Determination for the Bolsa Chica Local Coastal Plan, March 11, 1980, that all available information demonstrated that the vast majority of the Bolsa Chica low lands exhibit all the characteristics set forth for the identification of wetlands pursuant to Section 30121 of the Coastal Act and concluded that the information supported a preliminary determination that areas identified on Exhibit J of the “Preliminary Determination” are wetland for the purposes of the Coastal Act. The Commission had also previously found in its denial of the City’s LUP that this area contained wetland resources. Since that action and the previous review of the City’s LUP, the Commission and staff have examined additional information concerning the Bolsa Chica wetlands system. As part of the review of the Bolsa Chica LUP the Dept. of Fish and Game in the document “Determination of the Status of Bolsa Chica wetlands (as amended April 16, 1982) identified this area as “severely degraded Historic wetland – Not Presently Functioning as Wetland” and considered it within the context of the entire Bolsa Chica wetland system. The DFG determined that this area is part of a 1,000 acre degraded wetland system in the area outside State ownership which is capable of being restored. The DFG report noted:

“The 440 acres of historic wetland which no longer function viably as wetland consists of approximately 250 acres of roads, and pads, 70 acres of agricultural land [including the subject site], and about 120 acres of viably functioning upland habitat. The roads and fill areas presently function as resting substrate for wetland-associated wildlife, and form narrow ecotones which add to and enhance the diversity of habitat available to wildlife. The 120 acres of upland habitat, considered in union, may be considered environmentally sensitive because of their special role in the Bolsa Chica wetland ecosystem. Were it not for the involvement of dikes, roads and relatively shallow fills, these 440 acres would be viably functioning wetlands.

6 As indicated in footnote 1, the boundaries of the MWD site at the time of the 1982 staff report were not entirely clear. However, the site clearly covered what is now the 40-acre ADC and may have covered the former County parcel and some of the 5-acre certified area as well. Moreover, it did not extend south of the flood control channel, so the observations recounted here are definitely applicable to the site that is the subject of the current application.


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The entire 1,324 acre study area, including 1,292 acres of historic wetland (in which 852 acres still function viably as wetlands [sic] constitutes a fundamentally inseparable wetland system of exceptional value to wildlife.”

The DFG also discussed potential restoration of these areas and noted that the amount of acreage and location of wetlands to be restored will be dependant on the amount of fill and existing wetlands which could be consolidated to allow some development in the lowlands.

Thus, when the Commission originally deferred certification of the subject site, it did so based on the presence of wetlands. The Commission found that the site contained wetlands, even though the wetland functions were impaired, as is the case today. Moreover, farming was on-going at the time certification was deferred. Thus, the area was deferred certification even though the wetlands were impaired and farming was on-going. No change to those conditions have occurred in the intervening years. Thus, one cannot argue today that the site does not contain wetlands due to on-going farming activities or due to the impaired condition of the wetlands. Furthermore, unpermitted activities cannot be used as a basis to say that wetlands no longer exist at the site. In addition, in deferring certification of the site the Commission recognized that the site was an integral part of the overall Bolsa Chica wetland system and could feasibly be restored. If the site were to be restored it would be a valuable addition to the Bolsa Chica wetlands restoration project. Sources to feed a restored wetland at the site would come from rainfall and possibly from the adjacent EGGWFCC, as well as urban runoff. And perhaps also from re-establishing the site as the location to accept runoff from the Cabo del Mar condominiums. In any case, restoration of the site as a freshwater wetland would be consistent with the historic wetland system which would typically have included a freshwater component, albeit significantly inland of the subject site. The addition of freshwater habitat to the Bolsa Chica wetlands restoration would greatly increase the biodiversity of the overall restoration project. In addition, taken with the preservation of the eucalyptus grove, described below, the area would provide significant habitat benefits. In addition to protecting the wetland area itself, it is important to establish buffer areas between the wetland and development. Buffers, by separating development from wetlands, minimize the adverse effects of development on wetlands, thereby avoiding significant adverse effects to resources. Buffers also provide transitional habitat and upland area necessary for survival of various animal species. The Commission has typically found that a minimum 100-foot buffer, or larger, is necessary to protect wetlands. Without the establishment of a minimum buffer size, projects could be approved with an inadequate buffer, jeopardizing the continuing viability of the wetland. Section 30250 of the Coastal Act requires that new development be located where it will not have significant adverse effects, either individually or cumulatively, on coastal resources. Wetlands constitute a coastal resource. In addition, Section 30231 of the Coastal Act requires that all wetlands be maintained by providing natural vegetation buffer areas. The City’s certified LUP includes Policy C 7.1.4, which requires buffers around wetlands. This policy


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would apply to the subject site, but it allows a lesser buffer area if existing development or site configuration preclude a full 100 feet. In this case, such circumstances do not apply because the site is 50 acres in size and is not constrained by the site configuration or by existing development. A buffer less than 100 feet from all on-site wetlands is not adequately protective of the wetland. The proposed amendment does not recognize all wetland areas present on site and does not provide any buffer requirements specific to the site. Thus, as proposed, the amendment could result in locating development too close to the wetland, threatening the survival of the resource, inconsistent with Section 30250 which requires that the location of development avoid significant adverse effects on coastal resources such as wetlands and Section 30231 which requires natural vegetation buffer areas. The extent of wetlands on site over the last 30 years, and past activities on the site that may have impacted those wetlands are difficult to determine with certainty. The Commission is charged with protecting wetlands, and limiting uses allowed within wetlands, as well as assuring that any allowable use is the least environmentally damaging alternative and that adequate mitigation is provided. The Commission must also assure that the quality of wetlands is maintained by, among other things, preventing substantial interference with surface water flow. In order to achieve these requirements, the Commission must review the evidence available to it, even when that evidence may conflict or be incomplete, and arrive at a conclusion that is most protective of wetlands. In this case, the Commission, after reviewing available evidence, finds that on balance there is stronger evidence to support the conclusion that there are significantly more wetlands at the site than has been recognized in the LUPA request. At a minimum, the additional wetland area includes the WP, AP, expanded CP, the area delineated by the EPA in 1989 (as adjusted) and, very likely, the area near the former equestrian facility. Any wetland delineation prepared for the subject site must recognize that the site is both a ‘difficult site to delineate’ (i.e. an area where conditions make the use of standard field indicators of wetland parameters difficult [e.g. soils formed under hydric conditions associated with tidal inundation that is no longer present]) and ‘atypical’ because human activities (i.e. farming) have resulted in the lack of positive indicators of one or more wetland parameters. The wetland delineation must account for circumstances where indicators are absent or difficult to interpret but other evidence demonstrates that the component(s) recognized by the Commission that comprise a wetland are present or would be present if not for the ‘difficult’ or ‘atypical’ situation. For example, the wetland delineation must recognize and account for circumstances where vegetation indicators cannot be expected; hydric soil indicators may be artifacts of prior conditions; the soil surface is frequently disturbed, which removes indicators of recent inundation; plowing may drastically alter the soil profile; irrigation might confound the interpretation of the presence of recruiting wetland plants and the presence of indicators of recent hydric conditions. Because the site historically has been, more or less continuously farmed, these indicators may be lacking even though the area may be “wet enough, long enough” that wetland features would develop. It is critical that future wetland delineations of the site recognize this protocol and that, consequently, even if the usual wetland indicators are not


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observable, wetland areas must still be identified if those areas meet Coastal Commission criteria. Wetland delineations must be sufficiently current to represent present site conditions. As proposed, the LUP amendment does not include this clarifying information. Therefore a modification is suggested to specifically incorporate this standard into the site specific section of the LUP. It should be noted that construction of a flood protection levee within the wetland buffer area, provided it is the least environmentally damaging alternative, would not be incompatible with the continuance of the wetland. In order to be the least environmentally damaging alternative, the flood protection levee should be placed outside the buffer wherever possible, and as close to land designated for residential and/or active park uses as much as possible. According to the related coastal development permit application for the subject site and the project proponent, the type of flood protection levee to be constructed would be a vegetated flood protection feature (VFPF), essentially vegetated earthen berm with an internal sheet pile wall. The VFPF would not be expected to adversely impact the wetland because 1) there would only be temporary construction-related impacts, 2) once constructed, the VFPF would be planted to provide upland habitat that complements the wetland vegetation, and, 3) the VFPF would not require maintenance once constructed, thus intrusions into the buffer would be limited only to those necessary during construction. For these reasons locating a flood protection levee such as the one described above within the wetland buffer would be consistent with Sections 30233 and 30250 of the Coastal Act regarding wetland protection. If, at the time a coastal development permit is proposed, the applicant presents conclusive evidence that a substantial area that has been designated Open Space Conservation did not support wetlands prior to unpermitted activity, or that no unpermitted activity occurred that effected wetlands, that evidence will be considered at the time the coastal development permit application is reviewed. If it is conclusively demonstrated by the evidence that residential or active park uses could be accommodated within the OS-C designated area without adversely impacting any coastal resources, it may be appropriate to evaluate whether an LCP amendment to address such evidence is suitable. However, the Commission must be most protective of coastal resources and in order to do so, based on the evidence currently available, it designates all area described above and as shown on 3rd revised exhibit NN Open Space Conservation. Furthermore, Section 30250 of the Coastal Act requires that new development be located where it will not have adverse effects on coastal resources. Wetlands constitute a coastal resource. Section 30231 of the Coastal Act requires that all wetlands be maintained and where feasible restored, by preventing depletion of ground water supplies and substantial interference with surface water flow and by maintaining natural vegetation buffer areas. Based on information submitted with the related coastal development permit application, a significant amount of earthwork would be necessary to prepare the site for residential development. It is essential that any earthwork undertaken on the site not interfere with the continuance of all on-site wetlands. No grading is allowed within the wetland and its buffer area under the Coastal Act (unless the grading is for the express purpose of wetland


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restoration). Grading, outside of the wetland, ESHA and necessary buffers, could only be considered if no adverse impacts to the wetlands resulted. If grading redirected groundwater and/or surface water flow such that water from the site no longer fed the wetlands, it would create an adverse effect on the wetland, which is a coastal resource, inconsistent with Sections 30231 and 30250 of the Coastal Act. The proposed amendment does not include any requirements that other site development, including earthwork, assure that no adverse effect occur to the wetlands. Thus, even if no grading were to occur within the wetlands and buffer areas, adverse impacts to on-site wetlands might result from the LUP amendment as proposed. However, if the amendment is modified to include language that requires the protection of the wetlands from all development on-site, the amendment could be found to be consistent with Section 30250 of the Coastal Act which requires no adverse effects to coastal resources occur. In addition to the modifications suggested above, additional measures must be incorporated into the LUP amendment for the subject site to assure that future development adjacent to the wetland and buffer areas and throughout the site does not adversely impact the wetland. For example, if no restrictions were placed on landscaping throughout the site, invasive plants within the residential areas could invade the wetland areas, potentially displacing the wetland plants. In addition, pets from the residential development, if unrestricted, may enter the wetland area causing disruption. As proposed the LUP amendment does not include any site specific restrictions regarding potential impacts to continuation of the wetland, inconsistent with Section 30250 of the Coastal Act. However if modified to include a prohibition on invasive plants throughout the site, and a requirement for a domestic animal management plan, and fencing along the buffer/development interface, as part of the site specific LUP language, the amendment could be found consistent with Section 30250 of the Coastal Act. Specific suggested modifications to accomplish this are necessary to bring the proposed amendment into conformance with the Coastal Act. Members of the public have raised concerns that unpermitted development has taken place on the property that is the subject of this amendment, and that such unpermitted development has affected the extent of wetlands on the site. Unpermitted development cannot be used as a basis to justify development in areas where, were it not for the unpermitted development, such development would not be allowed. This is true whether there is a specific policy reflecting this in the LUP or not. In this case, however, due to the fact that there is an ongoing controversy over the extent of wetlands on the property, the Commission wishes to ensure that the potential unpermitted development at the site is appropriately evaluated when a coastal development permit for this site is considered. Because this is a live controversy, the Commission suggests a modification of the proposed amendment to include an LUP policy that makes it clear that unpermitted development does not provide the standard for “existing” conditions and that any development proposal must be considered as if the unpermitted development had not occurred. The Commission finds that only if modified as suggested can the proposed land use plan


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amendment be found to be consistent with and adequate to carry out Sections 30233 and 30250 of the Coastal Act regarding wetlands. 3. Eucalyptus ESHA The subject site contains environmentally sensitive habitat areas (ESHA). The trees within the “eucalyptus grove,” within and adjacent to the subject site’s western boundary are ESHA due to the important ecosystem functions they provide to a suite of raptor species. Section 30240 requires that ESHA be protected from significant disruption and that only uses dependent upon the resource are allowed within ESHA. In addition, Section 30240 requires development adjacent to ESHA be sited and designed to prevent impacts which would significantly degrade those areas. Section 30240 further requires that development be compatible with the continuance of the habitat area. This policy is carried over into the City’s certified LUP ESHA policies. In order to assure the ESHA is not significantly degraded and is protected and remains viable, in addition to precluding non-resource dependent development within the ESHA, a buffer zone around the ESHA must be established. A buffer zone would require that development adjacent to the ESHA be set back an appropriate distance from the ESHA. The setback is intended to move the development far enough away from the ESHA so as to reduce any impacts that may otherwise accrue from the development upon the ESHA and that would significantly degrade the ESHA or be incompatible with its continuance. The distance between the ESHA and development, the buffer zone, must be wide enough to assure that the development would not degrade the ESHA and also would be compatible with the continuance of the ESHA. The property owner has suggested a “variable width buffer” as a means of protecting the ESHA. The property owner’s consultant (Homrighausen, 2007) has indicated that such a variable width buffer would average 334 feet (see Figure 8 of Commission’s staff ecologist’s 7/25/07 Memorandum, Exhibit QQQ). However, this result appears to have been obtained by averaging the development setback from both the southern grove of Eucalyptus trees and the northern grove, and by including the active park area with the buffer. It is obvious that the proposed development, which includes the park, is effectively less than 164 feet (50 meters) from the northern Eucalyptus trees that provide raptor habitat rather than the claimed 334 feet. As described in greater detail in the findings for denial of the LUPA as submitted (see Appendix A), a buffer area less than 100 meters is inadequate to protect the ESHA as required by Section 30240(b) of the Coastal Act. As proposed, ESHA area would be land use designated Open Space Parks, which would allow active park uses within the ESHA. In order to assure the ESHA is protected, in addition to precluding development within the ESHA, a buffer zone around the ESHA must be established. As proposed, the LUP amendment designates necessary buffer area Open Space Parks and Low Density Residential. The proposed designations would allow residential and park uses within the required buffer areas. Residential and park uses


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within ESHA and its buffer are inconsistent with Section 30240 of the Coastal Act. The land use designation that protects ESHA by limiting uses within ESHA to those allowed under Section 30240, and that prevents disruption of the habitat is Open Space Conservation. In order to assure that development adjacent to the ESHA does not significantly degrade or impair the continuance of the ESHA, the appropriate land use designation for both the ESHA and its buffer area is Open Space Conservation. It is also worth noting that California gnatcatchers (Polioptila californica californica), a species listed as “threatened” under the Endangered Species Act, are known to frequent the subject site, especially the western portion. Also, Southern tarplant (Centromedia parryi ssp. Australis), a California Native Plant Society “1b.1” species (seriously endangered in California), also exists at the site. However, the Southern tarplant exists in scattered areas on the site. A focused survey documented the presence of 42 individuals, distributed in 6 locations. The Commission’s staff ecologist, in a memo dated 12/19/06 (see exhibit N), concludes that neither the seasonal gnatcatcher foraging habitat nor the Southern tarplant on the subject site meet the Coastal Act definition of ESHA. Nevertheless, regarding gnatcatcher habitat on-site, the staff ecologist’s memo states, regarding gnatcatcher habitat on-site “it is worth noting that the areas of marginal habitat where gnatcatchers have been observed are not proposed for development.” Regarding the Southern tarplant, the memo states: “In contrast to the habitats on the Bolsa Chica mesa, the scattered areas containing southern tarplant on the Parkside property do not appear to be significant habitat for this species, and it is my opinion that these areas do not meet the definition of ESHA under the Coastal Act. In any case, if the amendment is modified as suggested, the gnatcatcher’s habitat and the southern tarplant on site will be retained within the Open Space Conservation designation. The land use designations within the ESHA must be limited to the designation that allows only those uses dependent upon the ESHA. In addition, the land use designation within the buffer zone must be the designation that allows only those uses compatible with the continuance of the ESHA, and that will not degrade the ESHA. Furthermore, it is important to assure the continuance of the raptor community by reserving adequate foraging area. In fact, the California Department of Fish and Game (CDFG) provided statements to this effect in a letter to the City dated June 15, 1998 commenting on the Draft Environmental Impact Report for the Parkside project (see Exhibit ZZZ). In that letter, CDFG states that "…[a]gricultural areas, grasslands and wetlands are of seasonal importance to several species of raptors in Orange County by providing important, if not vital, staging and wintering habitat. These habitats also provide foraging areas for resident breeding raptors." CDFG goes on the express concern about the loss of raptor foraging areas within the project site and vicinity and the impacts such loss may have on the adjacent Bolsa Chica Ecological Reserve. However, CDFG didn't suggest any specific mitigation for this loss in this letter. However, in recent years, CDFG has routinely recommended a mitigation ratio of 0.5:1 (preservation area to foraging area lost). Were this ratio applied at the subject site, about 17 acres of the subject site would need to be designated Open Space Conservation just to mitigate the loss of foraging habitat of raptors. As proposed, the LUP amendment would not preserve all ESHA areas and would not reserve adequate


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foraging area or provide required buffers and thus is not consistent with Section 30240 of the Coastal Act. In addition, because the proposed land use designations within and adjacent to ESHA do not limit the uses to those consistent with Section 30240 of the Coastal Act, the proposed LUPA is inconsistent with this Coastal Act requirement to protect ESHA. Therefore the amendment must be denied as proposed. However, if the proposed amendment were modified to land use designate all ESHA and necessary foraging and buffer area Open Space Conservation as depicted on 3rd revised exhibit NN, the amendment would be consistent with Section 30240 of the Coastal Act. The above referenced exhibit depicts all areas on site that are recommended for designation as Open Space Conservation (OSC). The recommended OSC area encompasses all known wetland areas on site and necessary buffer and mitigation area, all ESHA on site and the required buffers, and includes the intermingled raptor foraging area. By retaining adequate area on site as OSC, a Residential designation on the remainder of the site could be found compatible with continuance of the ESHA. Within the area that is recommended to be designated OSC, but that does not fall within existing or filled wetland, ESHA, or required buffer or mitigation area, a water quality natural treatment system (or equivalent) would be appropriate. An NTS would be appropriate in this area because it would provide habitat value, including raptor foraging area. The shallow water habitat would increase the variety of habitats within the OSC area, potentially contributing to biodiversity of the site. It should be noted that construction of a flood protection levee within the ESHA buffer, provided it is the least environmentally damaging alternative, would not significantly degrade the ESHA. Alternatives that minimize encroachment into buffer area are preferred. According to the related coastal development permit application for the subject site and the project proponent, the type of flood protection levee to be constructed would be a vegetated flood protection feature (VFPF), essentially a vegetated earthen berm with an internal sheet pile wall. The VFPF would not be expected to degrade the ESHA because 1) there would only be temporary construction-related impacts, 2) once constructed, the VFPF would be planted, thus providing habitat, and, 3) the VFPF would not require maintenance once constructed, thus intrusions into the ESHA buffer due to the VFPF would be limited only to those necessary during construction. For these reasons locating a flood protection levee such as the vegetated flood protection levee described above within the ESHA buffer would be consistent with Section 30240 of the Coastal Act regarding protection of ESHA. The actual design and construction of the flood protection levee would depend on its location. In addition to land use designating all ESHA area and necessary buffer and mitigation areas Open Space Conservation, additional measures must be incorporated into the LUP amendment for the subject site to assure that future development does not adversely impact the ESHA. For example, fuel modification requirements necessary to protect future development from fire hazard must be addressed to assure habitat values within the ESHA and required buffer areas are not adversely affected. In addition, if no restrictions were


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placed on landscaping throughout the site, invasive plants within the residential areas could invade the ESHA areas, potentially displacing the ESHA plants. In addition, pets from the residential development, if unrestricted, may enter the ESHA area causing disruption. As proposed, the LUP amendment does not include any site development restrictions intended to eliminate the site development’s potential disruptions to the ESHA, inconsistent with Section 30240 of the Coastal Act. However if modified to include a prohibition on invasive plants throughout the site, and a requirement for a domestic animal management plan, and fencing as part of the site specific LUP language, the amendment can be found consistent with Section 30240 of the Coastal Act. Specific suggested modifications to accomplish this are necessary to find the proposed amendment consistent with the Coastal Act. Therefore, the Commission finds that only as modified can the proposed amendment be found to be consistent with Section 30240 of the Coastal Act. 4. Density As proposed the amendment would allow a density of up to 7 dwelling units per acre on approximately 38 acres of the 50 acre site which would yield a maximum of 266 units on the area proposed to be designated residential. However, the related coastal development permit application contemplates just 170 detached single family homes on relatively large lots. The City has proposed a residential land use designation of RL (Residential Low, maximum of 7 units per net acre). However, the City’s certified LUP includes a residential land use designation of RM (Residential Medium, from 7 to a maximum of 15 units per net acre). The Commission’s suggested modifications necessary to protect coastal resources would reduce the allowable development footprint from the proposed approximately 38 acres to approximately 19 acres. If developed at the maximum allowed under RL, a total of 119 units would be the maximum number possible. This would still provide a viable use of the site. However density consistent with the RM designation would also be acceptable within the allowable development footprint. If the RM designation were applied to the site, the maximum total number of units possible would be 255 units, significantly more than the number currently contemplated by the property owner’s development plan. Although 255 units are not guaranteed under the RM designation, the ability to establish more units under RM leaves the property owner with greater flexibility in determining the best use of its property. It is worth noting that, although the project site abuts a low density, single family detached residential development to the north (along Kenilworth Drive and Greenleaf Avenue), there are also higher density multi family residential developments adjacent to and nearby the project site. The previously described Cabo del Mar condominium complex is adjacent to the subject site. Immediately to the north and west of Cabo del Mar are additional multi family residential developments. Thus developing at a higher density at the subject site would not be out of the scale or character of the surrounding development. In addition, Section 30250 of the Coastal Act encourages residential development to be


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concentrated in areas able to accommodate it. The higher residential density allowed under the RM designation would allow development at the site to be concentrated in the northeast portion of the site, consistent with this Coastal Act requirement. Thus, a modification is suggested which would allow the City, at the time it considers accepting the suggested modifications recommended herein, to apply either the RL or the RM designation. 5. Water Quality Section 30230 of the Coastal Act requires that marine resources be maintained, enhanced, and where feasible, restored. Section 30231 of the Coastal Act requires that the biological productivity and quality of coastal waters be protected. The City’s certified LUP includes policies that reflect the requirements of 30230 and 30231 of the Coastal Act. Development has the potential to adversely impact coastal water quality through the removal of native vegetation, increase of impervious surfaces, increase of runoff, erosion, and sedimentation, introduction of pollutants such as petroleum, sediments, metals, cleaning products, pesticides, and other pollutant sources. The 50 acre project site is currently undeveloped, with the exception of farming activities. Under existing conditions, no runoff leaves the site during most rainfall events. However, installation of impervious surfaces and activities associated with residential development and related hardscape represent a potentially significant impact to water quality downstream of the project, which include the Inner and Outer Bolsa Bay, Muted Tidal Pocket wetlands, Huntington Harbour, and Anaheim Bay Wildlife Refuge. These downstream areas are likely to suffer increases in water quality impairment when site development produces greater volumes and velocities of runoff as well as introducing increased pollutant loads. It is important that LUP language for the subject site clearly address potential adverse impacts arising due to post development runoff into the channel and significant water bodies downstream. This is especially true because little or no runoff currently leaves the site during most rainfall events. However, the proposed amendment does not include such language. Without such language the LUP amendment is not consistent with the water quality policies of the Coastal Act. The subject site represents an excellent opportunity to incorporate a natural treatment system, such as a wetland detention system. There are multiple benefits from natural treatment systems such as pollutant removal, groundwater recharge, habitat creation, and aesthetics. Furthermore, maintenance needs are typically more apparent and less frequent with natural/vegetative treatment systems and thus are more likely to remain effective than mechanical systems such as storm drain inserts and the like which can become clogged and otherwise suffer mechanical difficulties. If mechanical treatment control BMPs are not continually maintained they will cease to be effective, and consequently water quality protection would not be maximized.


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Incorporating a natural treatment system, such as wetland detention pond system is feasible at the site. The site is an appropriate candidate for a natural treatment system because it is a large site unconstrained by existing development, limited lot size or limited by topography. There is plenty of space on the site to accommodate a wetland detention or similar type system while still allowing a reasonable development footprint. Moreover, because little or no drainage currently leaves the site, it is important that development of the site not result in creation of new adverse water quality impacts such as would result from increased runoff leaving the site. In order to achieve the goal of not creating new adverse water quality impacts, all dry weather flow would need to be retained on site to the maximum extent practicable. The best way to accomplish retention of dry weather flow on site typically is some type of natural treatment system. Furthermore, in order to protect water quality year round it is appropriate to impose a standard that any runoff that leaves the site must meet. The generally accepted standard for stormwater runoff is a requirement to treat at least the 85th percentile storm event, with at least a 24-hour detention time. If dry weather runoff cannot be retained on site, it should be treated (e.g., detained for at least 48 hours and where practicable for seven days in a natural treatment system). The current LUP amendment does not require these site-specific water quality measures and standards. Therefore, there is no assurance that water quality will be protected. Consequently the amendment is not consistent with the water quality policies of the Coastal Act and must be denied. In addition, although the existing LUP includes policies that require projects to incorporate water quality BMPs, none of the existing LUP policies express a preference for types of treatment control BMPs. The preferred option for treatment control BMPs is, first, a natural treatment system (e.g. bio-swales, vegetative buffers, constructed or artificial wetlands), then, second, a combination of natural treatment and mechanical systems or BMPs, and last, use of mechanical treatment systems or BMPs alone (e.g. site-specific water quality treatment plants, storm drain filters and inserts). In addition, application of appropriate site design and source control BMPs reduces the amount of runoff that would need treatment control measures. Thus, site design and source control BMPs should be considered first in order to adequately size any necessary treatment control BMPs. In addition, the LUP does not contain any policy citing a hierarchy of preference for different types of BMPs. Without such an LUP policy, there is no guarantee they will be incorporated into projects when it is feasible to do so. Natural treatment systems, for the reasons described above, provide better water quality protection, among other benefits. Consequently the amendment is not consistent with the water quality policies of the Coastal Act and must be denied. However, if the amendment is modified as suggested to include this in LUP policy language, it would be consistent with the water quality policies of the Coastal Act. The use of permeable materials for paved areas in new developments is a site design and source control measure which can reduce the rate and volume of the first flush of stormwater runoff and can help to minimize or eliminate dry weather flow. The proposed


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amendment does not include any discussion on the benefits of incorporating permeable materials into the design of future projects. However, if the amendment is modified as suggested to include this in LUP policy language, it would be consistent with the water quality policies of the Coastal Act. In addition, as proposed, the amendment does not include any requirements to minimize or eliminate dry weather flows through the use of site design and source control BMPs. Consequently, adverse water quality impacts due to dry weather flows are not minimized. However, if the amendment were modified as suggested to incorporate policy language addressing this measure, the amendment would be consistent with the water quality policies of the Coastal Act. The current City of Huntington Beach LCP Policy 6.1.6 (paragraph 4) states that, the City shall continue implementation of the Municipal Non-Point [sic] Source National Pollution Discharge Elimination System (NPDES) standards program which is required by an order of the Santa Ana Regional Water Quality Control Board. The policy also states that the City will continue to require a Water Quality Management Plan for all applicable new development and redevelopment in the Coastal Zone. The Commission finds this policy should be modified to include the correct name and date of the permit and to incorporate this permit by reference into the Local Coastal Program. Updates to the NPDES permit (such as the update expected in 2007) should be submitted to the Executive Director for an LCP amendment. While the Commission recognizes that the City’s existing policies address water quality protection and improvement within the City, it also recognizes that there are additional, more specific steps that could be taken to further protect, restore and/or enhance the water quality of downstream sites (EGGW flood control channel, Bolsa Chica wetlands restoration area, Huntington Harbour, and Anaheim Bay Wildlife Refuge) that will be effected by runoff generated by development of the site. The proposed amendment could not be found consistent with Sections 30230 and 30231 of the Coastal Act, if feasible measures known to positively impact water quality were not included in language specific to the subject site as part of the current amendment proposal. The Commission’s standard of review, which requires the preservation, protection, and enhancement of coastal resources including water quality, necessitates that the additional measures, outlined above, be imposed. Thus, the Commission finds that only if modified as suggested is the proposed amendment consistent with Sections 30230 and 30231 of the Coastal Act regarding water quality.

6. Public Access and Recreation Section 30210 of the Coastal Act states:

In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public


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safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse.


The location and amount of new development should maintain and enhance public access to the coast by … (3) providing nonautomobile circulation within the development, (4) providing adequate parking facilities or providing substitute means of serving the development with public transportation, … (6) assuring that the recreational needs of new residents will not overload nearby coastal recreation areas by correlating the amount of development with local park acquisition and development plans with the provision of onsite recreational facilities to serve the new development.

Coastal Act Section 30212.5 states:

Wherever appropriate and feasible, public facilities, including parking areas or facilities, shall be distributed throughout an area so as to mitigate against impacts, social and otherwise, of overcrowding or overuse by the public in any single area.

Coastal Act Section 30213 states, in pertinent part:

Lower cost visitor and recreational facilities shall be protected, encouraged, and, where feasible, provided. Developments providing public recreational opportunities are preferred.

Coastal Act Section 30223 states:

Upland areas necessary to support coastal recreational uses shall be reserved for such uses, where feasible.

In addition, the City’s certified LUP contains the following policies regarding public access:

Provide coastal resource access opportunities for the public where feasible and in accordance with the California Coastal Act requirements.

Encourage the use of City and State beaches as a destination point for bicyclists, pedestrians, shuttle systems and other non-auto oriented transport.

Encourage the utilization of easements and/or rights-of-way along flood control channels, public utilities, railroads and streets, wherever practical, for the use of bicycles and/or pedestrian (emphasis added).

Maintain existing pedestrian facilities and require new development to provide pedestrian walkways and bicycle routes between developments.


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Link bicycle routes with pedestrian trails and bus routes to promote an interconnected system.

Develop a riding and hiking trail network and support facilities that provide linkages within the Coastal Zone where feasible and appropriate.

Balance the supply of parking with the demand for parking.

Maintain an adequate supply of parking that supports the present level of demand and allow for the expected increase in private transportation use.

Maintain and enhance, where feasible, existing shoreline and coastal resource access sites.

Promote and provide, where feasible, additional public access, including handicap access, to the shoreline and other coastal resources.

Promote public access to coastal wetlands for limited nature study, passive recreation and other low intensity uses that are compatible with the sensitive nature of these areas.

Maintain and enhance, where necessary, the coastal resource signing program that identifies public access points, bikeways, recreation areas and vista points throughout the Coastal Zone.

Preserve, protect and enhance, where feasible, existing public recreation sites in the Coastal Zone.

Ensure that new development and uses provide a variety of recreational facilities for a range of income groups, including low cost facilities and activities.

Encourage, where feasible, facilities, programs and services that increase and enhance public recreational opportunities in the Coastal Zone.

Promote and support the implementation of the proposed Wintersburg Channel Class I Bikeway.

The provision of public access in new development proposals is one of the main tenets of the Coastal Act. This emphasis has been carried over into the City’s certified LUP. In certifying the LUP, the Commission recognized, via the approved LUP policies, the importance of including measures such as providing and enhancing public access to the sea and other coastal resources, adequate parking and alternate means of transportation, low cost recreational uses, and public access signage, with new development.


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The 50-acre site is located in close proximity to the Bolsa Chica wetlands restoration area (see exhibit BBBB). The Bolsa Chica Wetlands, at approximately 1,000 acres, is the largest remaining wetland in Southern California. Because it is tidally influenced, the Bolsa Chica wetlands constitute “sea” according to the Coastal Act definition (Section 30115). Because there is no public road between the subject site and the Bolsa Chica wetlands, the site is between the sea and the first public road. As such, the area is given special significance with regard to the requirement for the provision of public access. Given the prominence of the adjacent Bolsa Chica wetlands, appropriate public access and passive recreational opportunities must be provided and conspicuously posted. Further, the Coastal Act gives priority to land uses that provide opportunities for enhanced public access, public recreation and lower cost visitor recreational uses. Beyond the Bolsa Chica wetlands restoration area is the Pacific Ocean and its sandy public beaches. Thus, public access across the subject site to the Bolsa Chica area would, in turn, facilitate public access, via alternate means of transportation (bicycle and pedestrian), to the ocean beach beyond. It is also worth noting that the visitor serving uses available within the Bolsa Chica reserve (such as walking, nature study, or bird watching) are served by only two small parking areas. One located at the Interpretive Center at the corner of Warner Avenue and Pacific Coast Highway, and the second at about the midway point along the reserve’s Pacific Coast Highway frontage. There is no public parking available along Pacific Coast Highway adjacent to the reserve. Thus, the benefits of providing alternate forms of transportation to access the area, such as biking or hiking from inland areas, are substantially increased. The lack of adequate parking to serve the reserve area is also a limiting factor in maximizing public use of the reserve’s amenities. Assuring that any future streets within the subject site are public and provide public parking is critical to maximizing public access in the area. It is also important to note that the Brightwater residential development, approved by the Coastal Commission under Coastal Development Permit No. 5-05-020 (Brightwater), is located less than one half mile west of the subject site. That development was originally proposed as a private, guard gated community. However, as approved by the Commission the development will be open to general public vehicular and pedestrian access, also allowing public parking on all subdivision streets. Also, as approved by the Commission the development will include a public trail along the bluff edge of the development, with public paseos and pocket parks throughout (see exhibit BBBB). The Commission’s approval also required public access signage. In approving the Brightwater development the Commission found:

“The provision of public access in new development proposals is one of the main tenants [sic] of the Coastal Act, especially in conjunction with new development located between the sea and the first public road, such as the subject project. The 225-acre Bolsa Chica Mesa is located between the first public road and the mean


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high tide of the sea. At roughly 50 ft. above mean sea level, spectacular views of the wetlands and the associated wildlife and uninterrupted views of the Bolsa Chica State Beach and Pacific Ocean are available from the upper bench of the Bolsa Chica Mesa. Santa Catalina Island is also often visible from the project site. The Bolsa Chica Wetlands at approximately 1,000 acres is the largest remaining wetland in Southern California. Following the 1997 State acquisition of most of the remaining wetlands that were under private ownership, a comprehensive Bolsa Chica wetlands restoration effort is now underway. Given the prominence of the adjacent Bolsa Chica wetlands, appropriate public access and passive recreational opportunities must be provided and conspicuously posted. Further, the Coastal Act gives priority to land uses that provide opportunities for enhanced public access, public recreation and lower cost visitor recreational uses.”

A trail connection between the Brightwater trail system and the East Garden Grove Wintersburg Flood Control Channel levee trail is also anticipated in the future and shown on the approved public access plan for the Brightwater development. The public access trails of the approved Brightwater project link to the trail system along the Bolsa Chica wetlands and beyond. These trails, in addition to providing recreational opportunities also provide significant opportunities for nature study and views of the wetlands and ocean beyond. The Bolsa Chica Ecological Reserve public trail system is a public access resource of regional significance. Members of the general public come from throughout the entire County of Orange and beyond to bird watch, hike, or bike the trail system. As the largest remaining wetland in Southern California, the public trail system leading to and within the Bolsa Chica area constitutes a resource of statewide significance. Further, Bolsa Chica State Beach, located across Pacific Coast Highway from the Bolsa Chica wetland area, can be accessed via this trail system. The proposed LUP amendment contains no language to assure public access will be provided throughout the site in conjunction with future site development. Although the certified LUP includes (as listed above) strong public access policies, the proposed LUP amendment does not include any public access language specifically addressing public access needs appropriate for the site, taking into consideration the recreational needs of both the new residents and other users of the adjacent public recreational resources. Specifically identifying the necessity of these provisions in the LUP is especially important at the subject site due to its unique position to link with and expand the very significant public trail systems within the Bolsa Chica Ecological Reserve, the Brightwater development, and the public beaches beyond. In order to assure that access is maximized at the time of future site development, specific language addressing access in the site specific section of the LUP is necessary. As proposed, no such language is included in the LUP amendment. Some specific methods for assuring the provision of public access at the subject site are described further below.

a) Bicycle Path The subject site is immediately adjacent to the north levee of the East Garden Grove


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Wintersburg Flood Control Channel (EGGWFCC). The County’s Commuter Bikeways Strategic Plan (the regional bikeways plan for Orange County) identifies a Class I bikeway along the flood control channel. This is also reflected in the City’s certified LUP. Figure C-14, Trails and Bikeways Map in the certified LUP identifies a proposed bikeway along the EGGWFCC adjacent to the site. A letter from the County’s Public Facilities & Resources Department dated January 8, 1998 (exhibit J) states:

“Regarding the City’s proposal to continue the Class I bikeway northerly along the Wintersburg Channel to Graham Street: The County supports this. It would provide an excellent bikeway connection between the City’s road system and the off-road wetlands perimeter route. (We suggest referring to this entire route – between Graham Street and PCH – as the Bolsa Chica Bikeway).”

In addition, a letter from the County’s Public Facilities & Resources Department, dated February 13, 1998 (exhibit J) commenting on a proposed tentative tract map for the subject site, states:

“A bicycle trail along the CO5 [East Garden Grove-Wintersburg Channel] north levee maintenance road will be required.”

A bike route in this area would provide substantial public access benefits. It is encouraged in existing LUP policies. It would provide a connection between existing inland routes and the Bolsa Chica area and is expected to be extended in the future along the remainder of the EGGWFCC levee adjacent to the Bolsa Chica Restoration area. When such an extension occurs (as is anticipated in the City’s LUP and by the County Public Facilities & Resources Department), the bike route would eventually link to the coast. An off road bicycle path already exists along the entire length of the City’s ocean fronting beach. A bike path at the subject site and along the remainder of the EGGWFCC would provide a new connection from inland bicycle paths to this coastal path. Not only would such a bicycle path provide substantial public recreational benefits, but it would also improve public access opportunities by providing alternate means of transportation to get to the coast and to the trails within the Bolsa Chica area. The City and the County have both indicated that a bicycle path in this location is desirable and appropriate. However, the proposed LUP amendment does not include any language specific to this site assuring that implementation of the bicycle trail will occur prior to or concurrent with site development. Current LUP policy merely states “promote” and “encourage” the bicycle path’s implementation. Therefore there is no assurance that it will be built in a timely manner, or perhaps that it will be built at all. Thus, the amendment as proposed cannot be found to be consistent with Sections 30210, 30213 and 30252 of the Coastal Act regarding maximizing public access.

b) Public Streets and Parking In addition, if the residential development that the proposed land use designation would allow were to be a private and/or gated development, public access would not be


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maximized or enhanced, inconsistent with Sections 30210, 30212.5, 30223 and 30252 of the Coastal Act. All public entry controls such as gates, gate/guard houses or other guarded entry, signage that discourages access and any other restrictions on the general public’s entry by and use of any streets or parking areas (e.g. private streets, preferential parking districts, resident-only parking periods/permits, etc.) would constrain the public’s ability to access the area proposed as public park as well as the public’s ability to access the public bike path along the EGGWFCC levee. In turn, public access to the Bolsa Chica area and ocean beyond would also not be provided. As stated previously, the site is between the first public road and the sea (in this case the Bolsa Chica wetlands). The provision of public parking within the area would allow visitors to begin a bike ride or walk along the levee, through the Bolsa Chica area, and on to the ocean front. Public streets and public parking within the residential area would not only support public recreational use in the vicinity of the subject site but also allow visitors from beyond the immediate vicinity to use the park area, and public recreational and open space resources in the Bolsa Chica area. In addition, ungated public streets would facilitate the use of interior public trails within the development. Interior trails would further maximize, support and enhance public access opportunities. Public trails could be established leading from Graham Street to the outer edge of the area recommended to be designated Open Space conservation, and from within the development back onto the bike way along the north levee of the EGGWFCC. Establishing such trails would provide an excellent public access experience consistent with the requirements of Sections 30210, 30212.5, 30213, 30223 and 30252 to maximize and enhance lower cost public recreational and public access opportunity with new development and assure adequate support facilities are provided. The provision of interior trails within a future development at the site would be especially consistent with Section 30252’s requirement that non-automobile circulation be provided within the new development. In order to assure that this aspect of public access (the provision of public parking within an ungated residential area with public streets and interior trails) is provided at the time the site is developed, language reflecting this must be incorporated into the LUP. However, no such language is proposed as part of the LUP amendment. Thus the amendment cannot be found to be consistent with Sections 30210, 30212.5, 30213, 30223 and 30252 of the Coastal Act regarding maximizing and enhancing public access.

c) Provision of Recreation and Public Access Benefits Residential development of the subject site that would occur pursuant to the proposed amendment would have adverse impacts on public access and recreation unless the above described measures are incorporated into the design of a future project. In order to assure maximum public benefit, the public recreation and access measures would need to be provided in a timely manner. However, nothing in the proposed amendment or in the City’s LUP currently requires that lower priority developments (such as residential) be phased to assure the provision of those uses that are a higher priority under the Coastal


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Act (such as public trails, parks, and parking) occur prior to or concurrent with the lower priority development. Without such a phasing requirement, it is difficult to assure that necessary public benefits would occur in a timely manner, or possibly even at all. Thus, as proposed, the amendment is inconsistent with Sections 30210, 30212.5, 30213 and 30252 of the Coastal Act regarding maximizing and enhancing public recreation and access. Coastal Act Section 30210 requires that public coastal access be maximized. Coastal Act Section 30252 requires that public access be maintained and enhanced through the provision of nonautomobile circulation within the development, adequate parking, and adequate recreational opportunities. These requirements are carried over and re-emphasized in the City’s Land Use Plan public access policies. As proposed the LUP amendment would allow significant residential development to occur with no corresponding requirement for public access specific to the site. The site is located between the sea and the first public road. Although a portion of the site is proposed to be designated park, nothing in the proposed amendment would assure that it would be available to the general public via public streets and trails. The certified LUP identifies a Class I bicycle path along the flood control channel levee at the subject site. However, the proposed amendment makes no reference to the suitability of a bicycle path at the subject site. If a future residential development at the site included gates or private streets, a significant public access opportunity would be lost. In addition, public parking in the area would increase public access opportunities to public resources including the park area, the bicycle path, the public trails of the Brightwater development and to the Bolsa Chica area beyond, as well as, ultimately, to the coast. However, there is nothing in the LUP amendment that would require the residential streets to be open and available to the public. Nor is there any requirement for interior trail connections between Graham Street, any future public park areas, and the bicycle path to areas within the development and beyond. In addition, nothing in the proposed amendment or in the City’s LUP requires that lower priority developments (such as residential) be phased to assure provision of associated recreation and public access (such as public trails, parks, and parking) occur prior to or concurrent with the lower priority development. Without such a phasing requirement, it is difficult to assure that Coastal Act high priority uses would occur in a timely manner, or possibly even at all. However, the proposed amendment could be modified such that site specific language in the LUP include reference to the Class I bicycle path along the flood control channel levee, interior trail connections, public parking and access on residential streets. This would allow direct public access throughout the site, the public trails within the Brightwater development and the Bolsa Chica area and to the beach beyond. Furthermore, the proposed amendment could be modified to incorporate a policy requiring phasing of recreation and public access uses prior to or concurrent with lower priority uses. Modifications to accomplish these goals would bring the proposed amendment into conformity with Coastal Act Sections 30210, 30212.5, 30213, 30223 and 30252 which require that public access and recreation be maximized and enhanced. Therefore, the Commission finds that only if modified as suggested is the proposed amendment


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consistent with Sections 30210 and 30252 of the Coastal Act. 7. Visual Resources Section 30251 of the Coastal Act requires that the scenic and visual qualities of coastal areas shall be considered and protected as a resource of public importance. The subject site offers the opportunity to provide public views from the site to the Bolsa Chica wetlands area and toward the ocean beyond. The VFPS would provide an excellent opportunity to provide public views to and along the coast and scenic areas, as required by Section 30251. However, the proposed LUP amendment does not include any discussion regarding provision of public view points in association with development of the site. Future residential development of the site is expected to include a wall separating residential development adjacent to the flood control levee from the anticipated public bicycle path along the top of the levee. If such a wall is proposed in the future, it could create adverse impacts to public views along the bicycle path. However, adverse impacts could be minimized by incorporating measures such as open fencing/wall, landscaped screening, use of an undulating or off-set wall footprint, or decorative wall features (such as artistic imprints, etc.), or a combination of these measures. In addition, any such wall should be located upon the private property for which it is intended to provide privacy. The proposed amendment does not provide language to address site specific visual impacts and does not assure that potential visual resources will be protected at the time the site is proposed for development. Therefore the proposed amendment is inconsistent with Section 30252 of the Coastal Act regarding protection of visual resources within the coastal zone and must be denied. However, if the amendment were modified to incorporate measures specific to the site that protect and enhance public views, the amendment would be consistent with Section 30252 of the Coastal Act regarding protection of public views.

8. Archaeological Resources Coastal Act Section 30244 requires that any impacts to significant archaeological resources be reasonably mitigated. The City’s certified LUP includes policies which require, among other things, identification of resources and mitigation of any impacts. Significant archaeological resources are known to exist in the project vicinity, and may occur on the subject site. However, the proposed LUP amendment does not include a specific requirement to avoid and/or mitigate archaeological impacts, even though the site is known to be in a potentially significant archaeological area. Without a cross reference in the site specific area discussion of the proposed LUP amendment to the archaeological policies in the LUP, there is no assurance that the potential for archaeological resources to occur on the site will be recognized in conjunction with future development proposals. If the potential for archaeological resources at the site is not recognized in the proposed LUP amendment for


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the site, application of the policies cited above may be overlooked. The proposed LUP amendment, which specifically addresses the subject site, provides the appropriate opportunity to make clear that archaeological resources may be present on this site, and therefore these specific policies must be applied. If the amendment were modified to include a cross reference to the archaeological policies of the LUP, adverse impacts may be avoided and reasonable mitigation for unavoidable impacts could be implemented in conjunction with future site development, consistent with Section 30244 of the Coastal Act. Therefore, the Commission finds that only if modified as suggested, is the proposed amendment consistent with Section 30244 of the Coastal Act which requires that reasonable mitigation be required for adverse impacts to archaeological resources.

9. Hazards Coastal Act Section 30253 state, in pertinent part:

New Development shall:

(2) Minimize risks to life and property in areas of high geologic, flood, and fire hazard.

(3) Assure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs.

The proposed LUP amendment would designate much of the subject site for residential development land use. The Commission’s staff geologist has reviewed a great deal of technical information submitted in conjunction with the proposed LUP amendment and related coastal development permit application. Potential geotechnical and hydrological issues are identified in the staff geologist’s memo. The staff geologist’s memo is attached as exhibit I, and is hereby incorporated by reference as if fully set forth herein. Residential development of the site carries with it certain risks. Although information submitted relative to the related coastal development permit application indicates there are feasible mitigation measures available to minimize the level of risk involved with site development, there is no specific requirement in the proposed amendment to assure that measures necessary for risk reduction would be incorporated into future site development. Without such requirements in the amendment, there is no assurance that risks will be minimized as required by Section 30253 of the Coastal Act. However, if the amendment were modified to include such a requirement, it would be consistent with Section 30253 of the Coastal Act. The subject site and much of the surrounding area are susceptible to tidal flooding. Tidal


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flooding could occur when extreme high tides occur concurrently with storm surge events. According to some studies, the existing tidal flooding risk was increased with the opening of the ocean inlet into the Bolsa Chica Restoration area. Regardless of the cause of the flooding, high tides and storm surge will create tidal flooding. The worst case scenario would occur when high tide and storm surge occurs during failure of the levees of the lower reaches of the East Garden Grove Wintersburg Flood Control Channel (EGGWFCC) (which is possible as the levees are not FEMA certified). Under any of these scenarios, up to 170 acres of inland developed area would be flooded. Consequently, contemplation of any development of the subject site must address this flooding issue. With or without development of the subject site, the inland 170 acres of existing development must be protected from flood hazard. The path the tidal flooding would follow unavoidably crosses the subject site. The only way to adequately insure protection of the inland 170 acres of existing development is to install a flood protection levee (a.k.a. VFPF) on the subject site or to the southwest of the subject site within the Bolsa Chica “Pocket Wetlands” between the EGGWFCC and the Bolsa Chica mesa. Protection of the inland 170 acres would also protect the 50 acre subject site from flooding. The property owner has indicated, in documents submitted with the related coastal development permit application, that a vegetated flood protection feature (VFPF) is proposed. The EGGWFCC is approximately 11 feet above sea level and the bluff at the western site boundary raises some 40 feet above sea level. A flood protection levee at this site could effectively capture tidal floods if it is constructed to an elevation above the expected flood flow. The existing EGGWFCC levee in the area adjacent to the subject site is expected to be reconstructed to meet FEMA certification standards and would have an elevation of 11 feet above sea level (the existing levee’s elevation is also 11 feet above sea level). If a flood protection levee were constructed to the same elevation, flood waters would be prevented from flooding the subject site as well as the additional 170 inland acres. With or without development of the proposed site, some form of flood protection is necessary to minimize risks to life and property in areas of high flood hazard and to assure stability and structural integrity, and not contribute significantly to destruction of the surrounding area. As it happens, the subject site provides the optimum location for the flood protection levee necessary to minimize risk to life and property in the 170 developed acres inland of the subject site. Construction of some type of flood protection levee would be necessary with development of the subject site. However, such a feature would be necessary even without site development. The flood protection levee, expected to be constructed as an earthen levee with an internal sheet pile wall, would serve an important function. Without construction of the flood protection levee, even with reconstruction of the north levee of the EGGWFCC along the subject site, flooding of 170 inland acres (including the subject site) would result, during either a tidal surge or a levee failure downstream of the subject site. The 170 acre inland area is developed with approximately 800 homes. Floodwater depth in some homes, it is estimated, would be at least two feet.


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However, construction of a flood protection levee on the site would be adequate to assure structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area. In addition, construction of the flood protection levee would minimize risks to life and property from flood hazard. In order for the flood protection levee to function effectively, it would have to be placed within the site’s necessary buffer areas. However, as described previously, a flood protection levee in the ESHA or wetland buffer area may be an allowable use within a buffer provided it is the least environmentally damaging feasible alternative. Furthermore, the construction of the flood protection levee may eliminate the need for the flood control levee downstream of the flood wall. If the flood control levee downstream of the flood wall is not reconstructed, potential impacts to wetlands in the CP wetland area can be avoided. The appropriateness of reconstructing the downstream levee area will be considered when the related coastal development permit is processed. It should be noted that an emergency coastal development permit was issued to the County of Orange to install sheet pile within the north levee of the flood control channel adjacent to the subject site. However, the County has indicated it is willing to consider alternatives that limit changes to the levee downstream if such an alternative is deemed feasible and environmentally desirable. Construction methods proposed by the County to install the sheetpiles will not involve any wetland fill. Impacts to coastal resources may occur which will be addressed in the follow-up permit. The question of whether the bluff along the western edge of the property should be considered a “coastal bluff” has been raised. The Commission’s staff geologist has evaluated the bluff’s status. The staff geologist’s evaluation is contained in a memorandum attached as exhibit P. The subject bluff was carved by the ancestral Santa Ana river as it meandered across the Bolsa Chica lowlands. Assertions have been made that the bluff was subject to marine erosion within the past 200 years based on an 1873 T-sheet that shows tidal channels adjacent to the toe of the bluff. The staff geologist’s response to these assertions is: “I concur that there is strong evidence that there were tidal wetlands in the Bolsa Chica lowlands prior to dike construction in the early twentieth century, but tidal wetlands generally are not the site of extensive marine erosion. Indeed, they are commonly depositional, not erosional, and serve as an efficient buffer from marine erosion.” The staff geologist concludes: “In summary, I believe that the bluff at the Shea Home property is best described as a river bluff and is not a coastal bluff in a genetic or geomorphic sense.” Thus, the Commission finds that the bluff on the subject site is not a “coastal bluff.” For the reasons described above, the Commission finds that only if modified can the proposed amendment be found to be consistent with Section 30253 of the Coastal Act which requires that risks to life and property be minimized and that development assure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area.


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10. Priority of Use Section 30222 of the Coastal Act states:

The use of private lands suitable for visitor-serving commercial recreational facilities designed to enhance public opportunities for coastal recreation shall have priority over private residential, general industrial, or general commercial development, but not over agriculture or coastal-dependent industry.

The LUP amendment does not propose to designate any portion of the site visitor serving commercial. Generally, in the City of Huntington Beach, the areas recognized as best for visitor serving commercial development are the areas along Pacific Coast Highway, and adjacent to and inland of the pier, and areas within and around Huntington Harbour. The subject site is surrounded on three sides by existing single family residences, and does not lend itself to visitor serving commercial development. Moreover, the LUP amendment as proposed and as amended will provide a Class I bicycle path, a public view area, public park area, and interior trails as well as public parking along the residential streets. Such uses constitute lower cost visitor serving recreational uses. As modified the recreational and public access provisions will be constructed prior to or concurrent with the residential uses. Therefore, the Commission finds that the proposed LUP amendment is consistent with Sections 30213 and 30222 of the Coastal Act which requires visitor serving commercial recreational facilities have priority over residential development and encourages provision of lower cost public recreational facilities.

11. Conclusion As proposed, the Land Use Plan amendment contains significant deficiencies with regard to consistency with the Coastal Act. As proposed, the amendment cannot be found consistent with Sections 30210 and 30252 regarding maximizing and enhancing public access, 30251 regarding protection of public views, 30233 and 30250 regarding wetlands, 30240 regarding ESHA, 30244 regarding archaeological resources, and 30230 and 30231 regarding water quality of the Coastal Act. However, if the proposed amendment were modified as suggested in Section II of this staff report, the amendment would be consistent with the Chapter 3 policies of the Coastal Act. Therefore, the Commission finds that only if modified is the proposed amendment consistent with the Chapter 3 policies of the Coastal Act. IV. CALIFORNIA ENVIRONMENTAL QUALITY ACT Section 21080.9 of the California Public Resources Code – within the California Environmental Quality Act (CEQA) - exempts local governments from the requirement of preparing an environmental impact report (EIR) in connection with its activities and approvals necessary for the preparation and adoption of a local coastal program (LCP). Instead, the CEQA responsibilities are assigned to the Coastal Commission. However, the


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Commission’s LCP review and approval program has been found by the Resources Agency to be functionally equivalent to the EIR process. Thus, under Section 21080.5 of CEQA, the Commission is relieved of the responsibility to prepare an EIR for each LCP. Nevertheless, the Commission is required in approving an LCP submittal to find that the LCP does conform with the provisions of CEQA, including the requirement in CEQA section 21080.5(d)(2)(A) that the amended IP will not be approved or adopted as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen any significant adverse impact which the activity may have on the environment. 14 C.C.R. Sections 13542(a), 13540(f), and 13555(b). The City of Huntington Beach LCP amendment 1-06 consists of an amendment to both the Land Use Plan (LUP) and the Implementation Plan (IP). As outlined in this staff report, the LUP amendment is not consistent with the Chapter 3 polices of the Coastal Act regarding public access and recreation, wetland, ESHA, marine resources, and land resources, as proposed. And also as outlined in this staff report, the proposed IP amendment is inconsistent with the wetland and ESHA protection policies of the certified Land Use Plan as modified. However, if modified as suggested, the amendment will be consistent with the public access and recreation, wetland, ESHA, marine resource, and land resource policies of the Coastal Act and the Land Use Plan, as amended. Thus, the Commission finds that the proposed LUP amendment, as modified, meets the requirements of and conforms with the Chapter 3 policies of the Coastal Act. In addition, the Commission finds that the IP amendment, if modified as suggested, is in conformity with and adequate to carry out the land use policies of the certified LUP. Therefore, the Commission finds that approval of the LCP amendment as modified will not result in significant adverse environmental impacts under the meaning of CEQA. Therefore, the Commission certifies LCP amendment request 1-06 if modified as suggested herein. HNB LCPA 1-06 Parkside stf rpt11.07 FNL mv

HNB LCPA 1-06 Parkside

List of Exhibits All correspondence and Ex Parte forms and similar exhibits that have previously been attached to a staff report or addendum have not been attached to this Novermber 2007 staff report. This is due to the volume of paper involved. In addition, some correspondence includes color images that do not copy well on the Commission’s black and white copy machine. All exhibits may be viewed electronically on the version of the staff report on the Commission web site: www.coastal.ca.gov/mtgcurr.html and may also be reviewed at the Commission’s South Coast District office. To review exhibits listed below that are not attached please contact Meg Vaughn at the District office at (562) 590-5071. Exhibit # Pages Location A. Regional Map 1 Staff Report B. Vicinity Map 2 Staff Report C. City Council Resolution No. 2002-123 4 Staff Report D. City’s LCPA Submittal Letter 8 On File/On Line E. City’s Proposed Land Use Designations 1 Staff Report F. City’s Proposed Zoning 1 Staff Report G. Site Location Relative to 1 On File/On Line Bolsa Chica Wetlands Restoration Area & Huntington Harbour H. CP Wetland & So. Eucalyptus Grove 1 On File/On line As recognized in LCPA I. Geotechnical Review Memorandum 9 Staff Report Mark Johnsson, Staff Geologist 7/24/06 J. County of Orange Letters 3 On File/On Line 5/6/98, 2/13/98, 1/8/98

Re: Class I Bikeway Flood Control Channel Levee K. Wetlands at Shea Homes Parkside 99 Staff Report Memorandum, 7/27/06 John Dixon, Staff Ecologist/Wetland Coordinator L. Staff Proposed Wetland and ESHA Delineations On File/On Line and Buffers M. Raptor Habitat at Parkside Memorandum 2 Staff Report John Dixon, Staff Ecologist/Wetland Coordinator 7/28/06 N. Ca. Gnatcatchers & So. Tarplant at Parkside 2 Staff Report John Dixon, Staff Ecologist/Wetland Coordinator



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Please use the links below to go to the exhibits.

HNB LCPA 1-06 Parkside Exhibits Page 2

Memorandum, 12/19/06 O. Memorandum, Parkside Estates, 1/25/08 2 Staff Report John Dixon, Staff Ecologist/Wetland Coordinator P. Geotechnical Review Memorandum, 1/22/07 3 Staff Report Re: Characterization of Bluff at Parkside Estates Site Mark Johnsson, Staff Geologist Q. Geotechnical Review Memorandum 4 Staff Report Re: Tidal Flooding Issues at Parkside Estates Site, 1/25/07 Mark Johnsson, Staff Geologist R. Shea Homes Letter1/23/07 4 On File/On Line S. City of Huntington Beach Letter, 1/23/07 2 On File/On Line Re: Limited Levee Alternative T. Alternate Flood Control Channel 2 On File/On Line & Access Road Plan, Shea Homes U. FEMA Letter, 1/25/07 2 On File/On Line Re: Levee and WP V. Shea Letter, 1/26/07 2 On File/On Line Re: FEMA Letter of 1/25/07 W. Bolsa Chica Land Trust Letter, 8/3/06 13 On File/On Line X. Letters Supporting LCPA as Proposed On File/On Line Y. Letters Opposing LCPA as Proposed On File/On Line Z. Memorandum, ESHA Buffer, 1/31/07 1 Staff Report John Dixon, Staff Ecologist/Wetland Coordinator AA. Ex Parte Received Prior to 7/9/0707 On File/On Line BB. Staff Proposed Wetland and ESHA Delineations 1 On File/On Line

and Buffers with City’s Proposed Land Use Designations CC. Neighbors for Wintersburg Wetlands 6 On File/On Line Restoration, Letter from Mark Bixby DD. Shea Homes Letter 2/9/07 5 On File/On Line Response to Allegations of Fill EE. Shea Home Letter 2/8/07 19 On File/On Line FF. Hearthside Letter 2/12/07 2 On File/On Line GG. BCLT Letter 2/8/07 4 On File/On Line HH. General Comment Letters On File/On Line II. Shea Homes Letter, 3/7/07 3 On File/On Line JJ. CLEAN Letter, 2/15/07 20 On File/On Line KK. Letters Opposed to the On File/On Line LCPA as Submitted LL. Letters Supporting the On File/On Line LCPA as Submitted MM. Ex Parte Received Prior to 7/10/07 On File/On Line NN. Staff Proposed Land Use Designations 1 Staff Report (3rd Revised)






OO. Neighbors for Wintersburg Wetlands 12 On File/On Line Restoration, Power Point Re: Unpermitted Fill PP. Mark Bixby Email, 4/24/07 20 On File/On Line Re: Hydrology QQ. Mark Bixby Email, 3/20/07 6 On File/On Line Re: WP Wetland Vegetation RR. Mark Bixby Email, 4/4/07 9 On File/On Line Re: WP Wetland Vegetation SS. Mark Bixby Email, 4/4/07 6 On File/On Line Re: Groundwater TT. Mark Bixby Email, 4/10/07 1 On File/On Line Re: Well Data UU. Neighbors for Wintersburg Wetlands 21 On File/On Line Restoration, Letter 4/30/07 Re: Unpermitted Fill in WP VV. Neighbors for Wintersburg Wetlands 22 On File/On Line Restoration, Letter 5/7/07 Re: Raptors WW. Shea Homes Letter, 4/25/07 24 On File/On Line Response Re: Groundwater Wells XX. Shea Homes Letter, 4/27/07 5 On File/On Line Response Re: Historic Fill Allegations YY. Shea Homes Letter, 4/27/07 3 On File/On Line Response Re: WP Fill Allegations ZZ. Shea Homes Letter, 4/30/07 2 On File/On Line Response Re: WP Fill Allegations AAA. City of Huntington Beach Memo 1 On File/On Line Re: Red Tag Fill BBB. 5-82-278 (Smokey’s Stables) 10 Staff Report Staff Report CCC. State Lands Commission Letter, 5/4/07 2 On File/On Line DDD. Coastal Commission Exemption Letter 3 Staff Report 6/15/94 EEE. City of Huntington Beach Letter, 6/26/07 4 On File/On Line FFF. Shea Homes Letter (no date) 1 On File/On Line GGG. LSA Memorandum, 6/22/07 2 Staff Report Re: Off-Site drainage into Parkside Estates EPA area” Attachments available on line HHH. Shea Homes Letter, 6/20/07 12 On File/On Line III. LSA Memorandum, 6/12/07 7 Staff Report Re: Historic “EPA area” on Parkside




Estates, Huntington Beach Attachments available on line JJJ. Emails from Mark Bixby 8 On File/On Line KKK. Mark Bixby Letter, 6/27/07 2 On File/On Line LLL. Natural Resources at the Parkside Property 17

Memorandum, 7/2/07 John Dixon, Staff Ecologist Memo

MMM. Aerial Photo Interpretation for Shea Property 17 Staff Report Memorandum, 7/2/07 Jonathan Van Coops, Mapping/GIS Program Manager

NNN. Coastal Commission Letter, 2/25/98 2 Staff Report OOO. SheaHomes Letter, 9/21/07 25 Staff Report Attachments available On Line PPP SheaHomes Letter, 9/24/07 2 Staff Report QQQ John Dixon Memo, 10/25/07 16 Staff Report RRR Jon VanCoops Memo, 10/25/07 13 Staff Report SSS SheaHomes Letter, 7/6/07 3 Staff Report Re: CLOMR and Elevation Flood Water TTT Art Homrighausen, LSA Letter, 7/7/07 3 Staff Report Attachments available On Line 4 UUU Letters Opposed to LCPA as Proposed Staff Report Received After July 11, 2007 VVV Letters In Support of the LCPA as Proposed Staff Report Received After July 11, 2007 WWW Ex Parte Received after July 11, 2007 Staff Report XXX California Farm Bureau, Letter, 7/9/07 36 Staff Report YYY CDG Letter 3/16/98 3 Staff Report ZZZ CDFG Letter 6/15/98 3 Staff Report AAAA CDG Letter 1/30/02 10 Staff Report BBBB Public Access in Parkside Vicinity 1 Staff Report APPENDIX A Staff Report Findings for Denial of the LUPA as Submitted




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Appendix A follows this page.



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Go to the report addendum posted on November 9, 2007 which also includes Exhibit BBBB.

Appendix A

Huntington Beach LCPA 1-06 Parkside

Findings for Denial of the Land Use Plan Amendment as Submitted

The Commission denied the Land Use Plan portion of LCP Amendment 1-06 as submitted at the May 10, 2007 hearing and continued action on question of approval LUPA if modified and on the Implementation Plan Portion of the LCPA. This appendix includes the findings for denial as they appeared at the May 10, 2007 Coastal Commission hearing.

Appendix A Huntington Beach LCPA 1-06

Findings for Denial of the Land Use Plan Amendment as Submitted Page 2

E. Denial of the Land Use Plan Amendment as Submitted

1. Wetland Wetlands often provide critical habitat, nesting sites, and foraging areas for many species, some of which are threatened or endangered. In addition, wetlands can serve as natural filtering mechanisms to help remove pollutants from storm runoff before the runoff enters into streams and rivers leading to the ocean. Further, wetlands can serve as natural flood retention areas. Another critical reason for preserving, expanding, and enhancing Southern California’s remaining wetlands is because of their scarcity. As much as 75% of coastal wetlands in southern California have been lost, and, statewide up to 91% of wetlands have been lost. Section 30121 of the Coastal Act states:

“Wetland” means lands within the coastal zone which may be covered periodically or permanently with shallow water and include saltwater marshes, freshwater marshes, open or closed brackish water marshes, swamps, mudflats, and fens.

The Commission has further specified how wetlands are to be identified through regulations and guidance documents. Section 13577(b)(1) of the Commission’s regulations states, in pertinent part:

Wetlands shall be defined as land where the water table is at, near, or above the land surface long enough to promote the formation of hydric soils or to support the growth of hydrophytes … For purposes of this section, the upland limit of a wetland shall be defined as:

(A) the boundary between land with predominantly hydrophytic

cover and land with predominantly mesophytic or xerophytic cover;

(B) the boundary between soil that is predominantly hydric and soil that is predominantly nonhydric; or

(C) in the case of wetlands without vegetation or soils, the boundary between land that is flooded or saturated at some time during years of normal precipitation, and land that is not




The biological productivity and the quality of … wetlands … appropriate to maintain optimum populations of marine organisms and for the protection of human health shall be maintained and, where feasible, restored through, among other means, … preventing depletion of ground water supplies and substantial interference with surface water flow, maintaining natural vegetation buffer areas that protect riparian habitats, …

Section 30233(a) of the Coastal Act states:

The diking, filling, or dredging of open coastal waters, wetlands, estuaries, and lakes shall be permitted in accordance with other applicable provisions of this division, where there is no feasible less environmentally damaging alternative, and where feasible mitigation measures have been provided to minimize adverse environmental effects, and shall be limited to the following:

1) New or expanded port, energy, and coastal-dependent industrial facilities, including commercial fishing facilities.

2) Maintaining existing, or restoring previously dredged, depths in existing navigational channels, turning basins, vessel berthing and mooring areas, and boat launching ramps.

3) In open coastal waters, other than wetlands, including streams, estuaries, and lakes, new or expanded boating facilities and the placement of structural pilings for public recreational piers that provide public access and recreational opportunities.

4) Incidental public service purposes, including but not limited to, burying cables and pipes or inspection of piers and maintenance of existing intake and outfall lines.

5) Mineral extraction, including sand for restoring beaches, except in environmentally sensitive areas.

6) Restoration purposes. 7) Nature study, aquaculture, or similar resource dependent activities.


(a) New residential … development … shall be located … where it will not have significant adverse effects, either individually or cumulatively, on coastal resources.

In addition, the City’s LUP includes Policy C 6.1.20, which limits filling of wetlands to the specific activities outlined in Section 30233 of the Coastal Act. And LUP policy C 7.1.4 states, in pertinent part: “Require that new development contiguous to wetlands or environmentally sensitive habitat areas include buffer



zones.” The proposed amendment includes an Open Space Conservation designation on a 3.3 acre area within the former County parcel. The 3.3 acre area includes an undisputed wetland area (see exhibit H). The proposed Conservation designation is appropriate for this area. However, additional wetland areas exist at the subject site that would not be protected with the Conservation designation. The Coastal Commission staff ecologist has reviewed considerable amounts of information regarding the extent of wetlands at the site, all of which are listed in his memorandum which is attached as Exhibit K to these findings and is hereby incorporated into these findings in its entirety. The property owner has submitted numerous documents intended to demonstrate that there are no wetlands on site, beyond the wetlands recognized on the former County parcel (i.e. the CP wetlands). Local citizens have submitted documents intended to demonstrate that there are significant wetlands on site. These citizens are concerned by the prospect that development may be allowed at the site if the LUP amendment were approved as submitted (and as reflected in the related coastal development permit application 5-06-327, Shea Homes, and appeal A-5-HNB-02-376). All these submissions have been reviewed by the staff ecologist. In addition, the staff ecologist has reviewed historical information regarding the subject site and surrounding area. Based on his review of the available data, the Commission’s staff ecologist determined that additional wetland areas exist at the subject site (see exhibit K). For the reasons listed in that memorandum and below, the Commission concurs and adopts its ecologist’s conclusions. The additional wetland areas at the site are referred to as the Wintersburg Pond or WP, which is adjacent to the EGGWFCC levee along the southern edge of the site; and the Agricultural Pond or AP, located near the base of the bluff along the western edge of the property. Additional wetland area, impacted by unpermitted fill, also exists in the area formerly known as the County Parcel, adjacent to the wetland already recognized there (see ‘Filled CP wetland’ on Exhibit NN). The proposed LUP amendment would designate these wetland areas Low Density Residential and Open Space Parks. These land use designations allow grading, and the construction of houses, roads, and active parks, which would necessitate the dredging and filling of the wetlands. Such uses within wetlands are inconsistent with Section 30233 of the Coastal Act. The memorandum dated July 27, 2006 from the Commission’s staff ecologist states: “The available data suggest that portions of the agricultural field … are inundated or saturated at a frequency and duration sufficient to support a preponderance of wetland plant species.” Such areas meet the definition of wetlands under the Coastal Act and the Commission’s Regulations.”



There are three factors or “parameters” that are used to determine whether or not a wetland exists: the presence of hydrophytic vegetation, the presence of hydric soils, and the presence of wetland hydrology. The Commission finds an area to be wetland if any one of the three parameters is present. Usually, the presence or absence of hydrophytes or hydric soils is sufficient to determine whether a wetland exists. However, those two indicators are not necessary, as they do not actually define a wetland. Rather, an area is defined as a wetland based on whether it is wet enough long enough that it would support either of those two indicators. Therefore, the removal of vegetation by permitted activities does not change a wetland to upland. Section 30121 of the Coastal Act provides the statutory definition of wetlands: “…lands within the coastal zone which may be covered periodically or permanently with shallow water and include saltwater marshes, freshwater marshes …” Section 13577(b)(1) of the California Code of Regulations provides the regulatory definition of wetlands: “… land where the water table is at, near, or above the land surface long enough to promote the formation of hydric soils or to support the growth of hydrophytes” Thus, the Coastal Act and the Regulations provide that a determination of the presence of wetlands may be made based on whether an area demonstrates the presence of sufficient water to promote hydric soils or to support hydrophytes, whether or not the soils and vegetation are present under existing conditions. Because this area was historically a salt marsh and because the site has been historically farmed and continues to be farmed as of the adoption of these findings, the typically used field indicators cannot be relied upon. The repeated discing and plowing associated with the existing agricultural use destroys hydric soil features and prevents the development of natural vegetation. Nevertheless, the evidence presented in the ecologist’s memo and summarized below indicates that the site is wet enough long enough to “support the growth” of hydophytes. Thus, the site meets the definition of wetlands contained in the Commission’s regulations. Furthermore, the site also meets the Coastal Act definition of wetlands in that it is “periodically covered in shallow water.” The wetland conclusion is based on two lines of evidence: (1) an examination of the vegetation at a nearby location that is similar in history, physical characteristics, and hydrology to the depressions in the agricultural field,1 and (2)

1 In the second to last footnote in Dr. Dixon’s memo, he notes that the topography of the reference site is actually similar to that of WP as it existed in 2003, not at present. More recently a box plough was used to fill area WP, which is apparent in 2006 topographic maps. The box plough fill is under investigation by Commission staff as an alleged violation. Accordingly, relying on the topography prior to the alleged violation yields the appropriate comparison. Additionally, the hydrology section of Dr. Dixon’s memo states that LSA biologists stated that WP didn’t pond until after about 1973. However, if this is due to



an informed estimate of the frequency of continuous inundation for long duration (at least 7 days) at various sites. Areas WP and AP were matched by the Commission’s staff ecologist, with wetland areas on the County parcel that were similar in elevation and topography. Inundation in the agricultural areas and at the reference wetlands was similar in pattern, further suggesting that the latter is a good proxy for the former. Therefore, since the dominant vegetation at the reference areas is mostly comprised of wetland species, it is reasonable to expect that the agricultural areas WP and AP would also support a predominance of hydrophytes in the absence of farming (i.e. that they are wet enough to support such vegetation). Establishing the extent of wetlands at the site, given its history of farming and disturbance, is not straightforward. The best approach for this site known to the Commission at this time is to base the wetland boundary on current conditions as inferred from recent topography and the available photographs of recent inundation. Prior to about 1990, it appears from aerial photographs that significant inundation was generally confined to the area delineated as wetland by the EPA in 1989 (generally in the area of the AP). Based on analysis of aerial photographs dating from 1958 to 1985, the applicant’s biological consultant concluded that inundation in that area tended to have a different footprint in different years and, based on this observation, he argues that no particular area should be identified as a wetland. However, all his estimated wetland polygons in the western portion of the agricultural field appear to fall within the area delineated by the EPA. In the absence of wetland vegetation, the drawing of wetland boundaries is an approximate exercise based on a small and haphazard collection of aerial photographs or ground observations and estimates of topography. Given the approximate nature of such delineations, it appears the consultant’s results are actually additional evidence that the EPA delineation was both reasonable and accurate at the time it was made. Although, prior to about 1990, wetlands hadn’t been delineated in the depression adjacent to the EGGWFCC (WP area) and inundation occurred there less frequently than in the area of the AP, in recent years, ample evidence exists to show that WP is inundated for long duration following significant rainfall. Moreover, the entire area was originally deferred certification due to the historic

changes in topography that occurred before 1973, it is again appropriate to focus on the post-1973 topography, as that represents current conditions. Conditions prior to 1973 may be irrelevant if topographical conditions changed prior to 1973, as such changes were pre-Coastal Act and therefore not Coastal Act violations.



presence of wetland on site. In deferring certification originally, the Commission found:

North Properties of the Bolsa Chica (Between Wintersburg Channel & base of Bluffs) (MWD Site #1 [virtually identical to the subject site of current LCP amendment2]) The LUP designates this site for low density residential uses. No modifications were made in the LUP from the previous denial by the Commission. The Commission found in its “Preliminary Wetlands Determination for the Bolsa Chica Local Coastal Plan, March 11, 1980, that all available information demonstrated that the vast majority of the Bolsa Chica low lands exhibit all the characteristics set forth for the identification of wetlands pursuant to Section 30121 of the Coastal Act and concluded that the information supported a preliminary determination that areas identified on Exhibit J of the “Preliminary Determination” are wetland for the purposes of the Coastal Act. The Commission had also previously found in its denial of the City’s LUP that this area contained wetland resources. Since that action and the previous review of the City’s LUP, the Commission and staff have examined additional information concerning the Bolsa Chica wetlands system. As part of the review of the Bolsa Chica LUP the Dept. of Fish and Game in the document “Determination of the Status of Bolsa Chica wetlands (as amended April 16, 1982) identified this area as “severely degraded Historic wetland – Not Presently Functioning as Wetland” and considered it within the context of the entire Bolsa Chica wetland system. The DFG determined that this area is part of a 1,000 acre degraded wetland system in the area outside State ownership which is capable of being restored. The DFG report noted:

“The 440 acres of historic wetland which no longer function viably as wetland consists of approximately 250 acres of roads, and pads, 70 acres of agricultural land [including the subject site], and about 120 acres of viably functioning upland habitat. The roads and fill areas presently function as resting substrate for wetland-associated

2 As indicated in footnote 1, the boundaries of the MWD site at the time of the 1982 staff report were not entirely clear. However, the site clearly covered what is now the 40-acre ADC and may have covered the former County parcel and some of the 5-acre certified area as well. Moreover, it did not extend south of the flood control channel, so the observations recounted here are definitely applicable to the site that is the subject of the current application.



wildlife, and form narrow ecotones which add to and enhance the diversity of habitat available to wildlife. The 120 acres of upland habitat, considered in union, may be considered environmentally sensitive because of their special role in the Bolsa Chica wetland ecosystem. Were it not for the involvement of dikes, roads and relatively shallow fills, these 440 acres would be viably functioning wetlands. The entire 1,324 acre study area, including 1,292 acres of historic wetland (in which 852 acres still function viably as wetlands [sic] constitutes a fundamentally inseparable wetland system of exceptional value to wildlife.”

The DFG also discussed potential restoration of these areas and noted that the amount of acreage and location of wetlands to be restored will be dependant on the amount of fill and existing wetlands which could be consolidated to allow some development in the lowlands.

Thus, when the Commission originally deferred certification of the subject site, it did so based on the presence of wetlands. The Commission found that the site contained wetlands, even though the wetland functions were impaired, as is the case today. In addition, the Commission recognized that the site was an integral part of the overall Bolsa Chica wetland system and could feasibly be restored. If the site were to be restored it would be a valuable addition to the Bolsa Chica wetlands restoration project. Sources to feed a restored wetland at the site would come from rainfall and possibly from the adjacent EGGWFCC, as well as urban runoff. In any case, restoration of the site as a freshwater wetland would be consistent with the historic wetland system which would typically have included a freshwater component, albeit significantly inland of the subject site. The addition of freshwater habitat to the Bolsa Chica wetlands restoration would greatly increase the biodiversity of the overall restoration project. In addition, taken with the preservation of the eucalyptus grove, described below, the area would provide significant habitat benefits. However, there is no proposal for restoration at this time. Nevertheless, the Coastal Act requires protection of any areas that continue to qualify as wetlands. Section 30233 of the Coastal Act requires that only the uses specified therein may be allowed within wetlands and even then only if the use is the least environmentally damaging alternative, and only when adequate mitigation is provided. The subject site was deferred certification due to the presence of wetlands on site. Substantial evidence exists that demonstrates the presence of wetlands at the subject site extends beyond the 3.3 acre area proposed to be designated Open Space Conservation in the proposed LUP amendment to the



areas referred to as AP and WP herein. As proposed, those two areas would be land use designated Low Density Residential and Open Space Parks. A third additional wetland area is located within the area formerly known as the County Parcel, adjacent to the recognized wetland area (see ‘Filled CP Wetland’ on Exhibit NN). This wetland area was filled without authorization from the Commission. In a letter dated 9/7/82 from the Department of Fish and Game (DFG) to Coastal Commission staff, the DFG determined the area, prior to placement of the unpermittedf fill, to be wetlands, and recommended removal of the fill and revegetation (see Exhibit BBB, page 9 & 10 ). Pursuant to Coastal Development Permit No. 5-82-278 the unpermitted fill was to have been removed and the area revegetated. Based on comparison of topographic (1980) and vegetation maps (Vegetation Communities, Exhibit 26 of the Bolsa Chica Land Use Plan, dated January, 1982) created before the unpermitted fill was placed, with topographic (1986 and 1996) maps created subsequent to the time the fill was placed, the elevation of the subject area was increased by at least 2 feet. Because of the unpermitted fill, the pickleweed within the filled area was no longer viable. Development approved pursuant to Coastal Development Permit 5-82-278 included removal of the unpermitted fill to an elevation of approximately three inches below the grade of the existing adjacent pickleweed stand and revegetation of the area with one or more of the following species: pickleweed, spiny rush, frankenia, sea lavender and shoregrass. However, elevations in the fill area are not consistent with pre-fill elevations. Rather, topographic maps prepared subsequent to the unpermitted fill depict the fill area at an elevation at least two feet above the adjacent CP wetland. Leading to the conclusion that removal of the fill and revegetation never occurred. Were it not for this unpermitted development, the area would have remained wetland area. Unpermitted development cannot be used as a basis to justify development in areas where, were it not for the unpermitted development, such development would not be allowed. Thus, consideration of appropriate land use designations must consider site conditions as if the unpermitted development had not occurred. Therefore, this area is considered a wetland. As proposed, the amendment would allow land uses such as residential and related uses such as roads. The proposed land use designation would allow uses that are not consistent with Section 30233 of the Coastal Act. As proposed, the land use plan amendment would designate these three wetland areas for residential development and for use as active parks, inconsistent with Section 30233 of the Coastal Act, which allows only the seven enumerated uses in wetlands. Residential and active park are not uses allowed under Section 30233. Therefore, the Commission finds that the proposed amendment is



inconsistent with the Coastal Act and must be denied. In addition to protecting the wetland area itself, it is important to establish buffer areas between the wetland and development. Buffers, by separating development from wetlands, minimize the adverse effects of development on wetlands, thereby avoiding significant adverse effects to resources. Buffers also provide transitional habitat and upland area necessary for survival of various animal species. The Commission has typically found that a minimum 100-foot wetland buffer, or larger, is necessary to protect wetlands. Without the establishment of a minimum buffer size, projects could be approved with an inadequate buffer, jeopardizing the continuing viability of the wetland. Section 30250 of the Coastal Act requires that new development be located where it will not have significant adverse effects, either individually or cumulatively, on coastal resources. Wetlands constitute a coastal resource. In addition, Section 30231 of the Coastal Act requires that all wetlands be maintained by providing natural vegetation buffer areas. The City’s certified LUP includes Policy C 7.1.4, which requires buffers around wetlands. This policy would apply to the subject site, but it allows a lesser buffer area if existing development or site configuration preclude a full 100 feet. In this case, such circumstances do not apply because the site is 50 acres in size and is not constrained by the site configuration or by existing development. A buffer less than 100 feet from all on-site wetlands is not adequately protective of the wetland. The proposed amendment does not recognize all wetland areas present on site and does not provide any buffer requirements specific to the site. Thus, as proposed, the amendment could result in locating development too close to the wetland, threatening the survival of the resource, inconsistent with Section 30250 which requires that the location of development avoid significant adverse effects on coastal resources such as wetlands and Section 30231 which requires natural vegetation buffer areas. Furthermore, Section 30250 of the Coastal Act requires that new development be located where it will not have significant adverse effects, either individually or cumulatively, on coastal resources. Wetlands are coastal resources. In addition, Section 30231 requires that all wetlands be maintained and where feasible restored, by preventing depletion of ground water supplies and substantial interference with surface water flow. Based on information submitted with the related Coastal Development Permit application, a significant amount of earthwork would be necessary to prepare the site for residential development. It is anticipated that earthwork on the order of 400,000 cubic yards of cut and 600,000 cubic yards of fill (including 260,000 cubic yards that will be imported from off-site), with over-excavation to depths of up 17 feet below sea level, will be necessary to eliminate potential hazards due to liquefaction, provide adequate structural support, and to raise the site above base flood elevation. It is essential that any earthwork undertaken on the site not interfere with the continuance of all



on-site wetlands. No grading is allowed within the wetland under the Coastal Act (unless the grading is for the express purpose of wetland restoration). Grading outside of the wetland and necessary buffers, could only be considered if no adverse impacts to the wetlands resulted. If grading redirected groundwater and/or surface water flow such that water from the site no longer fed the wetlands, the development activity could have a significant adverse effect on the coastal resource (wetland) and thus would be inconsistent with Sections 30231 and 30250 of the Coastal Act. However, the proposed amendment does not include any requirements that other site development, including earthwork, assure that no significant adverse effects on the wetlands will result. Thus, even if no grading were to occur within the wetlands and buffer areas, adverse impacts to the quality of on-site wetlands might result from the LUP amendment as proposed. Further, when invasive and/or non-native species are planted within the buffer areas or within areas adjacent to the buffer, those species can displace the plants within the buffer and wetland. Introduction of non-native and invasive plants within the wetland and buffer, resulting in displacement of the wetland plants, degrades the wetland and creates significant adverse effects on the wetland, which is a coastal resource, inconsistent with the requirements of Section 30250 of the Coastal Act. In order to protect the wetlands and increase the likelihood of continuation of the wetland, only non-invasive, native plants should be allowed within the buffer. In sum, as submitted, the LUP amendment does not adequately protect wetland resources as required by Coastal Act Sections 30231, 30233 and 30250. It therefore does not meet the requirements of, and is not in conformity with, these policies and therefore must be denied. 2. Eucalyptus ESHA Section 30107.5 of the Coastal Act states:

“Environmentally sensitive area” means any area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments.

Section 30240 of the Coastal Act states:

(a) Environmentally sensitive habitat areas shall be protected against any

significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas



(b) Development in areas adjacent to environmentally sensitive habitat area and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with the continuance of those habitat and recreation areas.

In addition, the City’s certified LUP includes the following policies:

Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas. In the event that development is permitted in an ESHA pursuant to other provisions of this LCP, a “no-net-loss” policy (at a minimum) shall be utilized.

And

Development in areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with the continuance of those habitat and recreation areas.

The City’s certified LUP also includes policy C 7.1.4, which requires that new development contiguous to wetlands or environmentally sensitive habitat areas include buffer zones. The subject site contains environmentally sensitive habitat area (ESHA). The trees in the “eucalyptus grove” within and adjacent to the subject site’s southwestern boundary (south grove) have been previously recognized as ESHA due to the important ecosystem functions they provide to a suite of raptor species. The trees are used for perching, roosting, or nesting by at least 12 of the 17 species of raptors that are known to occur at Bolsa Chica. Although it is known as the “eucalyptus grove”, the grove also includes several palm trees and pine trees that are also used by raptors and herons. None of the trees are part of a native plant community. Nevertheless, this eucalyptus grove has been recognized as ESHA for over 25 years (USFWS, 1979; CDFG 1982, 1985) not because it is part of a native ecosystem, or because the trees in and of themselves warrant protection, but because of the important ecosystem functions it provides. Some of the raptors found to be using the grove included the white tailed kite, sharp-shinned hawk, Cooper’s hawk, and osprey. Many of these species are dependent on both the Bolsa Chica wetlands and the nearby upland areas for their food. The trees in the southwestern grove have



also been recognized by the Coastal Commission as ESHA as defined in Section 30107.5 of the Coastal Act in previous Commission actions. The Commission first recognized the ESHA status of the southwestern grove many years ago, and the California appellate court in 1999 did not question the designation of the Eucalyptus grove as an ESHA protected by the Coastal Act when, in 1995, the County of Orange, on behalf of the predecessor applicant, Koll Real Estate Group, attempted to relocate that portion of the Eucalyptus grove within their property, through the LCP process, to the Huntington Mesa, in order to make room for full development of the upper and lower benches of the Bolsa Chica Mesa. It should be noted that the Eucalyptus grove ESHA mapped by DFG in 1982, stops abruptly along the extension of Bolsa Chica Street. However, the grove continues east from there along the base of the bluff at the western edge of the subject property (see exhibit L). There is, however, no functional distinction between the area of the grove to the west of the Bolsa Chica Street extension and the rest of the grove. Raptors and other wildlife use and benefit from the entire grove. The abrupt truncation is not consistent with actual wildlife use and the habitat function of the entire grove. Thus, there is no justification for treating only the western end of the grove as ESHA and not the entire grove. For these reasons, in 2005 the Commission found that the trees throughout the entire Eucalyptus grove along the southern edge of the mesa constitute ESHA that must be protected (see coastal development permit 5-05-020, Hearthside Homes/Signal Landmark – Brightwater Project). The Commission has not previously considered the status of the portion of the Eucalyptus grove at the base of the mesa in the northwest corner of the Parkside site (north grove). The north grove is separated from the south grove by a gap of about 650 feet (see exhibit L). The trees in the north grove of the site provide the same type of ecological services as do the rest of the trees bordering the mesa. The following species have been observed in the north grove: white-tailed kite, merlin, red-shouldered hawk, turkey vulture, great horned owl, barn owl, peregrine falcon, Cooper’s hawk, red-tailed hawk, and osprey. Of these, red-tailed hawk, Cooper’s hawk, osprey, barn owl, and turkey vulture have been recently observed perching or roosting and Cooper’s hawks, a California Species of Special Concern, were observed to nest there in 2005 and 2006. In addition, paired great horned owls have been regularly observed within the northern grove over the last 20 years by local raptor biologist (P. Bloom, personal communication to J. Dixon 01-31-07). The presence of an old nest suggests that the grove has probably supported nesting birds of prey in previous years. Like the rest of the Eucalyptus grove, these trees provide opportunities to raptors for perching, roosting and nesting and for hunting and safe movement corridors. In recognition of the important ecosystem functions provided by Eucalyptus trees in



the north grove, and in conjunction with the fact that the trees could be easily disturbed, degraded, or entirely destroyed by development, the Commission finds that they meet the definition of ESHA under the Coastal Act. Section 30240 requires that ESHA be protected from significant disruption of habitat values and only uses dependent on those resources are allowed within ESHA. Development adjacent to ESHA must be sited and designed to prevent impacts which would significantly degrade those areas. Section 30240 further requires that development be compatible with the continuance of those habitat and recreation areas. This policy is carried over into the City’s certified LUP in the policies cited above. Although the area of the Eucalyptus ESHA in the southwest corner of the site is appropriately proposed to be designated Open Space Conservation, the area of the Eucalyptus ESHA located in the northwest corner of the site is proposed to be land use designated Open Space Parks. The Eucalyptus ESHA in the northwest corner is known to have supported a nesting pair of Cooper’s hawks in the spring of 2005 and 2006. In addition to the nesting kites, this area of the Eucalyptus ESHA provides similar roosting and perching opportunities for the suite of raptor species. The Open Space Parks designation allows uses such as tot lots, playing fields and bike paths. Such uses are not resource dependant and, as such, allowing these uses within the ESHA is inconsistent with Section 30240 of the Coastal Act. In addition, these active uses within the ESHA would likely cause significant disruption, also inconsistent with Section 30240. Therefore, as proposed, the amendment is inconsistent with the resource protection policies of the Coastal Act, and therefore must be denied as submitted. Section 30240(b) of the Coastal Act requires development in areas adjacent to environmentally sensitive habitat area be sited and designed to prevent impacts which would significantly degrade those areas, and to be compatible with the continuance of those habitat areas. In order to assure the ESHA is not significantly degraded and is protected and remains viable, in addition to precluding non-resource dependent development within the ESHA, a buffer zone around the ESHA must be established. A buffer zone would require that development adjacent to the ESHA be set back an appropriate distance from the ESHA. The setback is intended to move the development far enough away from the ESHA so as to reduce any impacts that may otherwise accrue from the development upon the ESHA and that would significantly degrade the ESHA or be incompatible with its continuance. The distance between the ESHA and development, the buffer zone, must be wide enough to assure that the development would not degrade the ESHA and also would be compatible with the continuance of the ESHA. For purposes of establishing protective buffers, the eucalyptus grove ESHA



boundary should be considered to fall along the drip line of the outermost trees of the grove (see exhibit L). The specific area of an appropriate buffer is more difficult to quantify. There is, to some degree, a subjective approximation element in assigning dimensions to protective habitat buffers or development setbacks. For example, it probably would not be possible to distinguish the different biological effects of a 100-foot buffer compared to a 110-foot buffer or those of a 300-foot-buffer from a 100-meter (328-foot) buffer. We tend to choose round numbers in whatever units we are using. However, the difference between a 100-foot buffer and a 100-meter buffer would provide discernable benefits to wildlife. Commenting on a proposed development that borders the eucalyptus grove ESHA on its western side (coastal development permit application number 5-05-020, Brightwater), wildlife agencies recommended a buffer width of 100 meters. However, the applicant’s consultants for that project (who are also the consultants for Shea Homes) recommended a 100-foot buffer. These large differences reflect differing opinions concerning the sensitivity of raptor species to disturbance and differences in opinion concerning the acceptable risk of disturbance impacts to raptors, especially raptors that have the potential for nesting at Bolsa Chica. In an urban environment, development setbacks are usually inadequate to protect all individuals of wildlife species of concern from significant impacts. In an urban setting a buffer is usually no more than one to several hundred meters, and usually less, whereas in a natural setting, a buffer of two kilometers has been found to be significantly more protective. For example, Findlay and Houlahan (1997) found a negative correlation between species richness in wetlands and the density of roads on land up to 2000 meters from the wetland and concluded that narrow buffer zones were unlikely to protect biodiversity. Development must be separated from ESHAs by buffers in order to prevent impacts that would significantly degrade those areas. Again, with regard to the Brightwater development, buffer recommendations from the same ESHA included a 150-meter buffer recommendation by Dr. Findlay, of the University of Ottawa. CDFG and USFWS previously recommended the establishment of a 100-meter buffer on the Bolsa Chica Mesa in the 1980’s. The Coastal Commission staff ecologist recommended a minimum 100-meter buffer around the eucalyptus ESHA. In further studying the appropriate buffer for the Eucalyptus ESHA, Dr. Dixon (staff ecologist) stated:

The buffer around the Eucalyptus tree ESHA is particularly important if those trees are to continue to function as nesting habitat for a variety of raptors. The California Department of Fish and Game and the U.S. Fish and Wildlife Service recommended a 100-m buffer. A literature review



found that raptor biologists recommended buffers for various species of nesting raptors from 200m to 1500 m in width, with the exception of 50-m buffers from visual disturbance for kestrels and prairie falcons … In an independent review concerning a prior development proposal at Bolsa Chica with 100-foot (30-m) buffers, raptor expert Brian Walton opined that developers “…often rely on buffers that I find largely ineffective for reducing raptor fright/flight response.” [and] “[t]hey describe unusual tolerance, habituated individuals or exceptions to normal raptor behavior rather than the more common behavior of wild birds.”

The 100-meter buffer recommended by USFWS (1979), CDFG (1982), and by staff is necessary to prevent disturbance to raptors that utilize the eucalyptus ESHA, and, based on raptor expert Peter Bloom’s estimates of foraging distances, is also large enough to provide significant foraging opportunities close to the nest. This is particularly important because distant foraging increases the risk of nest predation. White-tailed kites, a fully protected species in California, have frequently nested at Bolsa Chica, and are generally considered relatively sensitive to human disturbance. Therefore, buffers that are adequate to protect nesting white-tailed kites should be adequate for most of the other species that are likely to nest in the eucalyptus ESHA. The following minimum spatial buffers have been recently recommended for nesting white-tailed kites: 100m (Bloom, 2002); 100m (Holmgren, 6.7.2002); 50m (J. Dunk (raptor researcher) in person communication to M. Holmgren, 2002); 46-61m (with “low-frequency and non-disruptive activities”; Froke, 2002). These estimates suggest that a 100-m buffer is probably adequate, but not overly conservative. Thus, the Commission finds that a buffer zone from the eucalyptus ESHA that is 100 meters wide would be appropriate to allow continuance of the ESHA and not cause significant disruption to it. However, no uniform buffer zone from the Eucalyptus ESHA is proposed as part of the LUP amendment. In fact, active park area would be allowed immediately adjacent to the trees under the LUP amendment as proposed. In addition, residential development would be allowed immediately adjacent to the ESHA, even though it cannot be considered compatible with the continuance of the ESHA. Buffers should not be used for activities that have negative effects on the resources that are being protected. Under the proposed LUP amendment, uses appurtenant to low density development such as roads would be allowed as close as 100 feet from the ESHA. The Open Space Park designation is proposed within and adjacent to the trees in the northwest corner of the site. Both of these uses within the locations proposed would not be consistent with the requirements of Section 30240 of the Coastal Act to protect ESHA. The land use designations that are acceptable



within the ESHA are limited to only those designations whose uses are dependent upon the ESHA. In addition, an appropriate buffer zone must be established. As proposed the LUP amendment would land use designate areas within and adjacent to the ESHA with designations that would allow uses that are not dependent upon the ESHA, and that could significantly degrade the ESHA. The proposed amendment is not consistent with Section 30240 of the Coastal Act and therefore must be denied. It is also worth noting that California gnatcatchers (Polioptila californica californica), a species listed as “threatened” under the Endangered Species Act, are known to frequent the subject site, especially the western portion. Also, Southern tarplant (Centromedia parryi ssp. Australis), a California Native Plant Society “1b.1” species (seriously endangered in California), also exists at the site. The primary purposes of the buffer around the eucalyptus ESHA is to keep disturbance (activity, lights, noise, pets, etc.) at a distance such that it will not disturb raptors or prevent nesting by the more sensitive species such as white-tailed kites, and to provide foraging habitat for the raptors. Uses allowed within the ESHA buffer may only be allowed if they are consistent with the purposes of the buffer. Passive recreation uses (e.g. trails, viewing areas, interpretive signage, and benches) may be acceptable within the outer 100 feet of the buffer when included as part of an overall management plan for the ESHA. Neither passive nor active recreation is a compatible use any closer to the ESHA. Even within the outer 100 feet of the ESHA buffer, acceptable passive recreational use should be limited to the 10 meters closest to development, where feasible. It appears, from plans submitted with the related coastal development permit application, that limiting passive recreational use to the outer 30 feet of the buffer area and as close as possible to developed area is feasible at the subject site. Consequently, any trails or other passive recreational use that are appropriate within the buffer area (i.e. would not significantly degrade the ESHA area) should be restricted to only the outer 30 feet of the ESHA buffer area and, more specifically, as close to developed areas as possible. Notwithstanding the above, formalization of an existing passive nature trail along the northern property line and adjacent to the existing multi-family residential development (Cabo del Mar), would be considered acceptable if there is no biologically superior alternative. It is acceptable because it is a passive nature trail and will not require disturbance to the habitat to formalize it, and it would afford a natural/educational experience. As it currently exists, it is immediately adjacent to the multi-family residential development just to the north of the



subject site; thus, it is located as close as possible to existing developed area. Portions of a Natural Treatment System (NTS) or equivalent, would be appropriate within the ESHA buffer. However, any NTS within the ESHA buffer would need to be at least 100 feet from the ESHA. Furthermore, due to the potential for disturbance that could adversely impact the ESHA if located any closer, any portion of the NTS that requires periodic maintenance or that contains roadways must be limited to the outer third of the buffer area and be located as close as feasible to developed area. An NTS within the ESHA buffer, subject to the constraints above, would be acceptable because it would occupy only a very small portion of the overall buffer area. Furthermore, the NTS itself will provide habitat value. The shallow water habitat will increase the variety of habitats within the buffer area. For these reasons, allowing an NTS type system within the ESHA buffer would not be expected to degrade the ESHA and would be compatible with its continuance. As proposed, the amendment would allow uses other than those outlined above within the ESHA and ESHA buffer. Thus, the proposed Open Space Park designation within the ESHA and buffer zone is also inconsistent with Section 30240. Therefore, the Commission finds that the proposed amendment is inconsistent with Section 30240 which requires that ESHA be protected and so the LUP amendment as proposed must be denied. 3. Water Quality Section 30230 of the Coastal Act states:

Marine resources shall be maintained, enhanced, and where feasible, restored. Special protection shall be given to areas and species of special biological or economic significance. Uses of the marine environment shall be carried out in a manner that will sustain the biological productivity of coastal waters and that will maintain healthy populations of all species of marine organisms adequate for long-term commercial, recreational, scientific, and educational purposes.

Section 30231 of the Coastal Act states:

The biological productivity and the quality of coastal waters, streams, wetlands, estuaries, and lakes appropriate to maintain optimum populations of marine organisms and for the protection of human health shall be maintained and, where feasible, restored through, among other means, minimizing adverse effects of waste water discharges and entrainment, controlling runoff, preventing depletion of ground water supplies and



substantial interference with surface water flow, encouraging waste water reclamation, maintaining natural vegetation buffer areas that protect riparian habitats, and minimizing alteration of natural streams.

Section 30230 of the Coastal Act requires that marine resources be maintained, enhanced, and where feasible, restored. Section 30231 of the Coastal Act requires that the biological productivity and quality of coastal waters be protected and, where feasible, restored. Section 30231 further requires that the quality of coastal waters be adequate to maintain healthy populations of marine organisms. Section 30231 also requires the use of various means, including managing wastewater discharges, controlling runoff, protecting groundwater and surface water, encouraging wastewater reclamation, and protecting streams, to maintain and enhance water quality. Development has the potential to adversely impact coastal water quality through the increase of impervious surfaces; increase of runoff, erosion, and sedimentation; and introduction of pollutants such as petroleum, cleaning products, pesticides, and other pollutants. When development increases impervious surface area, the infiltrative function and capacity of the project site is decreased. The reduction in permeable surface therefore leads to an increase in the volume and velocity of runoff that can be expected to leave the site. The cumulative effect of increased impervious surface is that the peak discharge rate is increased and the peak occurs much sooner after precipitation events. Additionally, runoff from impervious surfaces results in increased erosion and sedimentation. Further, pollutants commonly found in runoff associated with new development include:

• petroleum hydrocarbons such as oil and grease from vehicles; • heavy metals; • synthetic organic chemicals including paint and household cleaners; • soap and dirt from washing vehicles; • dirt and vegetation from yard maintenance; • litter and organic matter; • fertilizers, herbicides, and pesticides from household gardening; • nutrients from wastewater discharge, and animal waste; • bacteria and pathogens from wastewater discharge and animal waste.

The discharge of these pollutants to coastal waters can cause cumulative impacts such as:



• eutrophication and anoxic conditions resulting in fish kills and diseases and the alteration of aquatic habitat, including adverse changes to species composition and size;

• excess nutrients causing algae blooms and sedimentation increasing turbidity, which both reduce the penetration of sunlight needed by aquatic vegetation that provide food and cover for aquatic species;

• disruptions to the reproductive cycle of aquatic species; • acute and sublethal toxicity in marine organisms leading to adverse

changes in reproduction and feeding behavior; and • human diseases such as hepatitis and dysentery.

These impacts reduce the biological productivity and the quality of coastal waters, streams, wetlands, estuaries, and lakes, reduce optimum populations of marine organisms and have adverse impacts on human health. Also where streams outlet on to recreational sandy beach areas, adverse impacts to public beach access can result. The 50 acre project site is currently undeveloped, with the exception of farming activities. Under existing conditions, due to the site’s topography and elevation, little or no runoff leaves the site during most rainfall events. The majority of the site (38.5/50 acres or 77% of the site) is proposed to be land use designated low density residential. The remaining area is proposed to be designated Open Space Parks (8.2 acres) and Open Space Conservation (3.3 acres). According to the Water Quality Management Plan (WQMP) prepared for the related coastal development permit (5-06-327) for the subject site, “[t]here are no pre-existing water quality problems with the project site.” However, installation of impervious surfaces and activities associated with residential development and related hardscape represent a potentially significant impact to water quality downstream of the project, including the Inner and Outer Bolsa Bay, Muted Tidal Pocket wetlands, Huntington Harbor and ocean waters. Because under current conditions little or no runoff leaves the site, residential development that would be allowed under the proposed amendment would create new adverse impacts where none currently exist. In addition, water bodies immediately downstream of the subject site, such as the Inner and Outer Bolsa Bay, Muted Tidal Pocket wetlands, Huntington Harbour, and Anaheim Bay Wildlife Refuge, are likely to suffer increases in water quality impairment when site development produces greater volumes and velocities of runoff as well as introducing increased pollutant loads. In addition, although the existing LUP includes policies that require projects to incorporate water quality BMPs, none of the existing LUP policies express a preference for types of treatment control BMPs. A treatment control BMP is a



system designed to remove pollutants from the runoff including the use of gravity settling, filtration, biological uptake, media adsorption or any other physical, biological, or chemical process. The preferred option for treatment control BMPs is, first, vegetative (or natural) treatment (e.g. bio-swales, vegetative buffers, constructed or artificial wetlands), then, second, a combination of vegetative and mechanical systems or BMPs, and last, use of mechanical treatment systems or BMPs alone (e.g. site-specific water quality treatment plants, storm drain filters and inserts). There are a number of reasons for this hierarchy of preference including the often multiple benefits from non-mechanical BMPs such as pollutant removal, groundwater recharge, habitat creation, and aesthetics. Incorporation of artificial wetland between the housing and the eucalyptus ESHA would provide additional buffer for wildlife by restricting access. Furthermore, maintenance needs are typically more apparent and less frequent with vegetative treatment systems and thus are more likely to remain effective than mechanical systems such as storm drain inserts and the like which can become clogged and otherwise suffer mechanical difficulties. If mechanical treatment control BMPs are not continually maintained they will cease to be effective, and consequently water quality protection would not be maximized. In addition, a natural treatment system would have an environmental benefit by allowing dry weather flow to infiltrate into the wetland soil or evaporate, thus keeping excess irrigation water and other sources of dry weather flow generated by site development from discharging into Bolsa Bay waters. Although mechanical systems remove pollutants, they still discharge the treated freshwater into an environment that would be naturally dominated by saltwater during dry weather. Incorporating vegetative treatment systems becomes more and more feasible when site design and source control BMPs are implemented. The area of land necessary to implement the preferred non-mechanical treatment systems can be minimized by incorporating site design and source control features into new development in the early planning stages. A site design BMP is a project design feature that reduces the generation of pollutants or reduces the alteration of the natural drainage features, such as minimizing impervious surfaces and the direct connectivity of impervious surfaces, as well as using permeable pavement. In addition, use of source control BMPs can also help to reduce the amount of land committed to a non-mechanical treatment system. A source control BMP is a practice that minimizes the introduction of pollutants and, thus, the release of pollutants into areas where they may be carried by runoff. Source control BMPs include: covering work areas and trash receptacles, practicing good housekeeping, and minimizing the use of irrigation and garden chemicals. One of the benefits of incorporating site design and source control BMPs into a development is that it becomes easier for a developer to incorporate natural



treatment systems because, among other things, the use of site design and source control BMPs results in significantly less runoff needing to be treated and, thus, reducing the area needed to accommodate a natural treatment system. The subject site represents an excellent opportunity to incorporate a natural treatment system, such as wetland detention ponds. There are multiple benefits from natural treatment systems such as pollutant removal, groundwater recharge, habitat creation, and aesthetics. Furthermore, maintenance needs are typically more apparent and less frequent with natural/vegetative treatment systems and thus are more likely to remain effective than mechanical systems such as storm drain inserts and the like which can become clogged and otherwise suffer mechanical difficulties. If mechanical treatment control BMPs are not continually maintained they will cease to be effective, and consequently water quality protection would not be maximized. Incorporating a natural treatment system, such as wetland detention ponds, is feasible at the site. The site is an appropriate candidate for a natural treatment system because it is a large site unconstrained by existing development, limited lot size or limited by topography. There is plenty of space on the site to accommodate a wetland detention or similar type system while still allowing a reasonable development footprint. Moreover, because little or no drainage currently leaves the site, it is important that development of the site not result in creation of new adverse water quality impacts such as would result from increased runoff leaving the site. In order to achieve the goal of not creating new adverse water quality impacts, all dry weather flow would need to be retained on site to the maximum extent practicable. In the case where large volumes of nonpoint source runoff are imported to the site for treatment, it may not be possible to infiltrate or evaporate all dry weather flow on site. Nevertheless the benefits of treating dry weather runoff from offsite (with a residence time of at least 48 hours and seven days where practicable) may provide a benefit that outweighs the potential adverse impacts of returning the treated water to flood control channels. The best way to accomplish retention of dry weather flow on site typically is some type of natural treatment system. Furthermore, in order to protect water quality year round it is appropriate to impose a standard that any runoff that leaves the site must meet. The generally accepted standard for stormwater runoff is a requirement to treat at least the 85th percentile storm event, with at least a 24-hour detention time. If dry weather runoff cannot be retained on site, it should be treated (e.g., detained for at least 48 hours and where practicable for seven days in a natural treatment system). The current LUP amendment does not require these site-specific water quality measures and standards. Therefore, there is no assurance that water quality will be protected. Consequently the amendment is not consistent with the water quality policies of the Coastal Act and must be denied.



Once development of the site occurs, run-off, along with the inherent impacts, will enter the EGGWFCC and downstream water bodies. Downstream water bodies include the Inner and Outer Bolsa Bay, Muted Tidal Pocket wetlands, Huntington Harbour, and Anaheim Bay Wildlife Refuge. Thus, all practicable efforts to mimic existing site conditions should be employed including minimizing or avoiding the discharge of runoff from the developed site. As proposed, the LUP amendment does not identify site specific water quality standards. Consequently the amendment is not consistent with the water quality policies of the Coastal Act and must be denied. The use of permeable materials for paved areas in new developments is a site design and source control measure which can reduce the rate and volume of the first flush of stormwater runoff and can help to minimize or eliminate dry weather flow. This type of BMP is becoming more common in new developments, so that costs of permeable pavements are approaching the costs of traditional pavements. By maintaining permeability on-site, a development can be designed to more closely retain the pre-development hydrologic functions of the site. And reducing the amount of runoff generated by a development reduces the volume and flow rate of runoff that may require a treatment control BMP. Use of permeable materials can help minimize impacts associated with the creation of impervious surface such as the increase in stormwater runoff, and corresponding reduction in infiltration. However, the proposed amendment does not include any discussion on the benefits of incorporating permeable materials into the design of future projects. Consequently the amendment is not consistent with the water quality policies of the Coastal Act and must be denied. Although the City of Huntington Beach has an LUP policy to encourage the Orange County Sanitation District to capture and treat dry weather flows, it does not address the other mitigation measure for dry weather flow which is to minimize or eliminate dry weather flow from new development sites. Many sources of dry weather flow can be eliminated by site design and source control BMPs, such as efficient irrigation, permeable pavement and natural treatment systems. The Commission finds dry weather flow in the arid climate of Southern California has the potential to adversely impact marine resources, even if the runoff is clean or treated to the maximum extent practicable and that new development should minimize or eliminate those flows. As proposed, the amendment does not include any requirements to minimize or eliminate dry weather flows generated by site development through the use of site design and source control BMPs. Consequently, adverse water quality impacts due to dry weather flows are not minimized. The amendment is therefore not consistent with the water quality policies of the Coastal Act and must be denied.



While the Commission recognizes that the City’s existing policies address water quality protection and improvement within the City, it also recognizes that there are additional, more specific steps that could be taken to further protect, restore and/or enhance the water quality of drainage generated at the subject site, and thus, the marine resources, biological productivity, and water quality of the ultimate receiving waters to which this project’s effluent will flow. For that reason, the proposed amendment cannot be found consistent with Sections 30230 and 30231 of the Coastal Act. The Commission’s standard of review, which requires the preservation, protection, and enhancement of coastal resources including water quality, necessitates that the additional measures, outlined above, be imposed. Thus, the Commission finds that, as proposed, the amendment is inconsistent with Sections 30230 and 30231 of the Coastal Act regarding water quality.

4. Public Access and Recreation Section 30210 of the Coastal Act states:

In carrying out the requirement of Section 4 of Article X of the California Constitution, maximum access, which shall be conspicuously posted, and recreational opportunities shall be provided for all the people consistent with public safety needs and the need to protect public rights, rights of private property owners, and natural resource areas from overuse.


The location and amount of new development should maintain and enhance public access to the coast by … (3) providing nonautomobile circulation within the development, (4) providing adequate parking facilities or providing substitute means of serving the development with public transportation, … (6) assuring that the recreational needs of new residents will not overload nearby coastal recreation areas by correlating the amount of development with local park acquisition and development plans with the provision of onsite recreational facilities to serve the new development.

Coastal Act Section 30212.5 states:

Wherever appropriate and feasible, public facilities, including parking areas or facilities, shall be distributed throughout an area so as to mitigate against impacts, social and otherwise, of overcrowding or overuse by the public in any single area.




Lower cost visitor and recreational facilities shall be protected, encouraged, and, where feasible, provided. Developments providing public recreational opportunities are preferred.

Coastal Act Section 30223 states:

Upland areas necessary to support coastal recreational uses shall be reserved for such uses, where feasible.

In addition, the City’s certified LUP contains the following policies regarding public access:

Provide coastal resource access opportunities for the public where feasible and in accordance with the California Coastal Act requirements.

Encourage the use of City and State beaches as a destination point for bicyclists, pedestrians, shuttle systems and other non-auto oriented transport.

Encourage the utilization of easements and/or rights-of-way along flood control channels, public utilities, railroads and streets, wherever practical, for the use of bicycles and/or pedestrian (emphasis added).

Maintain existing pedestrian facilities and require new development to provide pedestrian walkways and bicycle routes between developments (emphasis added).

Link bicycle routes with pedestrian trails and bus routes to promote an interconnected system.

Develop a riding and hiking trail network and support facilities that provide linkages within the Coastal Zone where feasible and appropriate.

Balance the supply of parking with the demand for parking.

Maintain an adequate supply of parking that supports the present level of demand and allow for the expected increase in private transportation use.

Maintain and enhance, where feasible, existing shoreline and coastal resource access sites.



Promote and provide, where feasible, additional public access, including handicap access, to the shoreline and other coastal resources.

Promote public access to coastal wetlands for limited nature study, passive recreation and other low intensity uses that are compatible with the sensitive nature of these areas.

Maintain and enhance, where necessary, the coastal resource signing program that identifies public access points, bikeways, recreation areas and vista points throughout the Coastal Zone.

Preserve, protect and enhance, where feasible, existing public recreation sites in the Coastal Zone.

Ensure that new development and uses provide a variety of recreational facilities for a range of income groups, including low cost facilities and activities.

Encourage, where feasible, facilities, programs and services that increase and enhance public recreational opportunities in the Coastal Zone.

Promote and support the implementation of the proposed Wintersburg Channel Class I Bikeway.

The provision of public access in new development proposals is one of the main tenets of the Coastal Act. This emphasis has been carried over into the City’s certified LUP. In certifying the LUP, the Commission recognized, via the approved LUP policies, the importance of including measures such as providing and enhancing public access to the sea and other coastal resources, adequate parking and alternate means of transportation, low cost recreational uses, and public access signage, with new development. The 50-acre site is located in close proximity to the Bolsa Chica wetlands restoration area (see exhibit G). The Bolsa Chica Wetlands, at approximately 1,000 acres, is the largest remaining wetland in Southern California. Following the 1997 State acquisition of most of the remaining wetlands that were under private ownership, a comprehensive Bolsa Chica wetlands restoration effort is now underway. In addition, because it is tidally influenced, the Bolsa Chica wetlands constitute “sea” according to the Coastal Act definition (Section 30115). Because there is no public road between the subject site and the Bolsa Chica wetlands, the site is between the sea and the first public road. As such, the area is given special significance with regard to the requirement for the provision of public access. Given the prominence of the adjacent Bolsa Chica wetlands,



appropriate public access and passive recreational opportunities must be provided and conspicuously posted. Further, the Coastal Act gives priority to land uses that provide opportunities for enhanced public access, public recreation and lower cost visitor recreational uses. Beyond the Bolsa Chica wetlands restoration area is the Pacific Ocean and its sandy public beaches. Thus, public access to the Bolsa Chica area would, in turn, facilitate public access, via alternate means of transportation (bicycle and pedestrian), to the ocean beach beyond. Although the certified LUP includes (as listed above) strong public access policies, the proposed LUP amendment does not include any public access language specifically addressing public access needs appropriate for the site, taking into consideration the recreational needs of both the new residents and other users of the adjacent public recreational resources. In order to assure that access is maximized at the time of future site development, as described previously, specific language addressing access in the site specific section of the LUP is necessary. As proposed, no such language is included in the LUP amendment. a) Bicycle Path The subject site is immediately adjacent to the north levee of the East Garden Grove Wintersburg Flood Control Channel (EGGWFCC). The County’s Commuter Bikeways Strategic Plan (the regional bikeways plan for Orange County) identifies a Class I bikeway along the flood control channel. This is also reflected in the City’s certified LUP. Figure C-14, Trails and Bikeways Map in the certified LUP identifies a proposed bikeway along the EGGWFCC adjacent to the site. A letter from the County’s Public Facilities & Resources Department dated January 8, 1998 (see exhibit J) states:

“Regarding the City’s proposal to continue the Class I bikeway northerly along the Wintersburg Channel to Graham Street: The County supports this. It would provide an excellent bikeway connection between the City’s road system and the off-road wetlands perimeter route. (We suggest referring to this entire route – between Graham Street and PCH – as the Bolsa Chica Bikeway).”

In addition, a letter from the County’s Public Facilities & Resources Department, dated February 13, 1998 (see exhibit J) commenting on a proposed tentative tract map for the subject site, states:

“A bicycle trail along the CO5 [East Garden Grove-Wintersburg Channel]



north levee maintenance road will be required.” A bike route in this area would provide substantial public access benefits. It is encouraged in existing LUP policies. It would provide a connection between existing inland routes and the Bolsa Chica area and is expected to be extended in the future along the remainder of the EGGWFCC levee adjacent to the Bolsa Chica Restoration area. When such an extension occurs (as is anticipated in the City’s LUP and by the County Public Facilities & Resources Department), the bike route would eventually link to the coast. An off road bicycle path already exists along the entire length of the City’s ocean fronting beach. A bike path at the subject site and along the remainder of the EGGWFCC would provide a new connection from inland bicycle paths to this coastal path. Not only would such a bicycle path provide substantial public recreational benefits, but it would also improve public access opportunities by providing alternate means of transportation to get to the coast and to the trails within the Bolsa Chica area. The City and the County have both indicated that a bicycle path in this location is desirable and appropriate. However, the proposed LUP amendment does not include any language specific to this site assuring that implementation of the bicycle trail will occur prior to or concurrent with sited development. Current LUP policy merely states “promote” and “encourage” the bicycle path’s implementation. Therefore there is no assurance that it will be built in a timely manner, or perhaps that it will be built at all. Thus, the amendment as proposed cannot be found to be consistent with Sections 30210, 30213 and 30252 of the Coastal Act regarding maximizing public access, and therefore, must be denied. b) Public Streets and Parking In addition, if the residential development that the proposed land use designation would allow were to be a private and/or gated development, public access would not be maximized or enhanced, inconsistent with Sections 30210, 30212.5, 30223 and 30252 of the Coastal Act. All public entry controls such as gates, gate/guard houses or other guarded entry, signage that discourages access and any other restrictions on the general public’s entry by and use of any streets or parking areas (e.g. private streets, preferential parking districts, resident-only parking periods/permits, etc.) would constrain the public’s ability to access the area proposed as public park as well as the public’s ability to access the public bike path along the EGGWFCC levee. In turn, public access to the Bolsa Chica area and ocean beyond would also not be provided. As stated previously, the site is between the first public road and the sea (in this case the Bolsa Chica wetlands). The provision of public parking within the area would allow visitors to begin a bike ride or walk along the levee, through the Bolsa Chica area, and on to the ocean front, that might otherwise not be feasible. Public streets and public parking within the residential area would not only support public recreational use



in the vicinity of the subject site but also allow visitors from beyond the immediate vicinity to use the park area, and public recreational and open space resources in the Bolsa Chica area. In addition, ungated public streets would facilitate the use of interior public trails within the development. Interior trails would further maximize, support and enhance public access opportunities. Public trails could be established leading from Graham Street to the area proposed to be designated Open Space Parks, and from within the development back onto the bike way along the EGGWFCC. Also, public trails along the edge of the wetland and ESHA buffers would provide an excellent public access experience consistent with the requirements of Sections 30210, 30212.5, 30213, 30223 and 30252 to maximize and enhance lower cost public recreational and public access opportunity with new development and assure adequate support facilities are provided. The provision of interior trails within a future development at the site would be especially consistent with Section 30252’s requirement that nonautomobile circulation be provided within the new development. In order to assure that this aspect of public access (the provision of public parking within an ungated residential area with public streets and interior trails) is provided at the time the site is developed, language reflecting this must be incorporated into the LUP. However, no such language is proposed as part of the LUP amendment. Thus the amendment cannot be found to be consistent with Sections 30210, 30212.5, 30213, 30223 and 30252 of the Coastal Act regarding maximizing and enhancing public access, and therefore must be denied. c) Provision of Recreation and Public Access Benefits Residential development of the subject site that would occur pursuant to the proposed amendment would have adverse impacts on public access and recreation unless the above described measures are incorporated into the design of a future project. In order to assure maximum public benefit, the public recreation and access measures would need to be provided in a timely manner. However, nothing in the proposed amendment or in the City’s LUP currently requires that lower priority developments (such as residential) be phased to assure the provision of those uses that are a higher priority under the Coastal Act (such as public trails, parks, and parking) occur prior to or concurrent with the lower priority development. Without such a phasing requirement, it is difficult to assure that necessary public benefits would occur in a timely manner, or possibly even at all. Thus, as proposed, the amendment is inconsistent with Sections 30210, 30212.5, 30213 and 30252 of the Coastal Act regarding maximizing and enhancing public recreation and access and therefore must be denied.



5. Visual Resources Section 30251 of the Coastal Act states:

The scenic and visual qualities of coastal areas shall be considered and protected as a resource of public importance. Permitted development shall be sited and designed to protect views to and along the ocean and scenic coastal areas, to minimize the alteration of natural land forms, to be visually compatible with the character of surrounding areas, and, where feasible, to restore and enhance visual quality in visually degraded areas. New development in highly scenic areas such as those designated in the California Coastline Preservation and Recreation Plan prepared by the Department of Parks and Recreation and by local government shall be subordinate to the character of its setting.

In addition, the City’s certified LUP contains the following policies: C 4.2.1

Ensure that the following minimum standards are met by new development in the Coastal Zone as feasible and appropriate:

a) Preservation of public views to and from the bluffs, to the shoreline and ocean and to the wetlands.

b) Adequate landscaping and vegetation. c) Evaluation of project design regarding visual impact and

compatibility. d) …

C 4.7.1 Promote the use of landscaping material to screen uses that detract from the scenic quality of the coast along public rights-of way and within public view.

The subject site offers the opportunity to provide public views from the site to the Bolsa Chica wetlands area and toward the ocean beyond. The related coastal development permit application (5-06-327) proposes a public viewing area in the southwest corner of the site. The southwest corner of the site is an excellent location for providing public views to and along the coast and scenic areas, as required by Section 30251. The location also works well with the anticipated bikeway along the EGGWFCC. However, the proposed LUP amendment does not include any discussion regarding provision of public view points in



association with development of the site. In addition, based on information submitted for the related coastal development permit application, it appears that elevations of the subject site may be raised in conjunction with any development of the subject site, such that future elevations may be similar to the elevation of the top of the EGGWFCC. The project described in the related coastal development permit application, includes a solid wall separating the rear yard area of future residences proposed under that application and the public bike path. The solid wall, proposed in the permit application to be ten feet high, immediately adjacent to the public bike path could have adverse visual impacts on public use of the bike path. However, adverse impacts could be minimized by incorporating measures such as reduced wall height, open fencing/wall, landscaped screening, use of an undulating or off-set wall footprint, or decorative wall features (such as artistic imprints, etc.), or a combination of these measures. The proposed amendment does not address this issue and does not assure that potential visual impacts of the development as viewed from the surrounding pubic recreational and open space areas will be addressed at the time the site is proposed for development. Therefore the proposed amendment is inconsistent with Section 30251 of the Coastal Act regarding protection of visual resources within the coastal zone and must be denied.

6. Archaeological Resources Coastal Act Section 30244 states:

Where development would adversely impact archaeological or paleontological resources as identified by the State Historic Preservation Officer, reasonable mitigation measures shall be required.

In addition, the City’s certified LUP includes the following policies regarding Historic and cultural Resources:

Coordinate with the State Of California Historic Preservation Office to ensure that archaeologic, paleontologic and historically significant resources within the Coastal Zone are identified.

Where new development would adversely impact archeological or paleontological resources within the Coastal Zone, reasonable mitigation measures to minimize impacts shall be required. In the event that any Native American human remains are uncovered, the County Coroner, the Native American Heritage Commission, and the Most



Likely Descendants, as designated by the California Native American Heritage Commission, shall be notified. The recommendations of the Most Likely Descendants shall be obtained prior to the disposition of any prehistoric Native American human remains. A completed archeological research design shall be submitted along with any application for a coastal development permit for development within any area containing archeological or paleontological resources. The research design shall determine the significance of any artifacts uncovered and make recommendations for preservation. Significance will be based on the requirements of the California Register of Historical Resources criteria, and prepared based on the following criteria:

a) Contain a discussion of important research topics that can be addressed; and

b) Be reviewed by at least three (3) county-certified archeologists (peer review committee).

c) The State Office of Historic Preservation and the Native American Heritage Commission shall review the research design.

d) The research design shall be developed in conjunction with affected Native American groups.

e) The permittee shall comply with the requirements of the peer review committee to assure compliance with the mitigation measures required by the archeological research design.

A County-certified paleontologist/archeologist, shall monitor all grading operations where there is a potential to affect cultural or paleontological resources based on the required research design. A Native American monitor shall also monitor grading operations. If grading operations uncover paleontological/archeological resources, the paleontologist/archeologist or Native American monitor shall suspend all development activity to avoid destruction of resources until a determination can be made as to the significance of the paleontological/archeological resources. If found to be significant, the site(s) shall be tested and preserved until a recovery plan is completed to assure the protection of the paleontological/archeological resources.

In conjunction with the Environmental Impact Report (EIR) prepared for the related development project for the subject site, an Archaeological Assessment was prepared (Appendix H to the EIR, titled Archaeological Assessment of the SHEA Homes Project Tentative 15377 and Tentative Tract 15419, March 1997). A number of archaeological sites are believed to be present on the subject site.



These include CA-ORA-83 (known as the Cogstone site), CA-ORA-1308 and 1309. The majority of CA-ORA-83 is located off-site, but three areas of CA-ORA-83 are believed to be located within the subject site. CA-ORA 1308 and 1309 were discovered and recorded in 1991. They are described as “possible” or “potential” archaeological sites. In any case, the extent and significance of the archaeological resources on the site has not been conclusively determined. Thus, it is important that any future site development include a careful assessment of the presence and extent of archaeological resources. Although the LUP policies cited above outline procedures for sites that potentially contain archaeological resources, nothing in the proposed amendment identifies this site as one with the potential for archaeological resources. Consequently, there is no assurance that the potential for archaeological resources to occur on the site will be recognized in conjunction with future development proposals. If the potential for archaeological resources at the site is not recognized in the proposed LUP amendment for the site, application of the policies cited above may be overlooked. The proposed LUP amendment, which specifically addresses the subject site, provides the appropriate opportunity to make clear that archaeological resources may be present on this site, and therefore these specific policies must be applied. Without such language within the LUP amendment, it cannot be found consistent with Section 30244 of the Coastal Act, and so it must be denied.

7. Hazards Section 30236 of the Coastal Act states:

Channelizations, dams, or other substantial alterations of rivers and streams shall incorporate the best mitigation measures feasible, and be limited to (1) necessary water supply projects, (2) flood control projects where no other method for protecting existing structures in the floodplain is feasible and where such protection is necessary for public safety or to protect existing development, or (3) developments where the primary function is the improvement of fish and wildlife habitat.


New Development shall: (1)Minimize risks to life and property in areas of high geologic, flood, and fire hazard. (2) Assure stability and structural integrity, and neither create nor



contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs.

The proposed LUP amendment would designate much of the subject site for residential development land use. Other than farming activities, the site is currently undeveloped. Thus the suitability of the site for residential development must be considered. Most of the site, except the bluff area on the site’s western boundary, is comprised of lowlands that were once a part of the historic, extensive Bolsa Chica wetlands system. Historically the site functioned as a floodplain. However, with development of the East Garden Grove Wintersburg Flood Control Channel (EGGWFCC) in the 1960s, the site has ceased serving that function. The northwestern corner of the site is crossed by a bluff, approximately 40 to 50 feet high, carved by the ancestral Santa Ana River. The portion of the site that is proposed to be land use designated residential is a very flat surface at an elevation of one to two feet below sea level. The Commission’s staff geologist has reviewed a great deal of technical information submitted in conjunction with the proposed LUP amendment and related coastal development permit application. The staff geologist has prepared three memos regarding the subject site, which are attached as exhibits I, P, and Q and are hereby incorporated as though fully set forth herein. The Commission concurs with and adopts the conclusions stated in the staff geologist’s memos. Potential geotechnical issues associated with residential development at the subject site include: ground shaking during a major earthquake on a nearby fault, possible surface rupture of the hypothesized Bolsa-Fairview Fault, liquefaction during such an earthquake, inadequate foundation support, and the stability of both natural and temporarily excavated slopes. In addition, development of the site raises certain hydrological issues. Following is a discussion in the staff geologist’s memo of the potential issues:

“Reference (8) indicates that the soils at the subject site are subject to liquefaction during a major earthquake. In addition, the presence of peat could lead to settlement problems, because organic materials such as peat are subject to decay and volume loss with time. In order to mitigate for these hazards, Shea Homes proposes to overexcavate the entire site to depths as great as 17 feet below sea level, involving approximately 400,000 cubic yards of cut. Unsuitable fill material such as peat would be exported, and the remainder of the material – as well as approximately



260,000 cubic yards of imported fill, would be compacted to suitable densities to provide structural support and to be invulnerable to liquefaction.”

The magnitude of over-excavation and recompaction in themselves raise some concerns. Since the over-excavation would extend well below sea level, dewatering will be necessary. The dewatering has the potential to lower ground water levels off-site, which could lead to settlement problems. In order to avoid settlement issues, the property owner’s consultants have indicated that the excavation will take place in stages, with only narrow excavations open at any one time. In addition, a monitoring program to detect settlement would be in place. The property owner’s consultants have indicated that water produced by the dewatering operations will be discharged into the storm water drainage system. Information submitted by the property owner’s consultants indicates that the water is suitable for disposal into the ocean. Regarding slope stability, the Memo prepared by the Commission’s staff geologist states:

“The backcuts of the excavations undertaken to mitigate the liquefaction hazard will extend to the base of the north levee of the East Garden Grove Wintersburg Flood Control Channel. The loss of lateral support for the levee, especially if high pore water pressures persist due to the rapid removal of material in the cut, has the potential to destabilize the levees. Reference (12) contains slope stability calculations that demonstrate that even with the persistence of high pore pressures and loss of lateral support, the slope supporting the levee will have a factor of safety against sliding of 1.28, which is considered adequate for temporary excavations. No slope stability calculations have been performed on the bluff in the northwestern corner of the site, and it is likely that it is only marginally stable. This area is planned for open space, however, so slope stability is this area is not a concern.”

In 1968 the California Department of Water Resources mapped a strand of the Newport-Inglewood fault across the site and dubbed it the Bolsa Fairview fault. Apparently the fault was located only indirectly on the basis of topographic expression, vertical offset of the base of the Bolsa aquifer, abrupt water quality changes between closely spaced wells, limited sea water intrusion northeast of the fault, and pumping data. However, more recent studies by the California Division of Mines and Geology concluded that there was insufficient evidence to indicate that the fault was either active, or, in fact, even that it exists, and the State Geologist accordingly de-listed the fault under the Alquist-Priolo Act.



Based on the more recent studies, it appears there is insufficient evidence to warrant inclusion of the fault as an identified hazard. The subject site is, geomorphologically, an historical flood plain, however, the floodplain has been channelized. Construction of the levees associated with the EGGWFCC has already functionally isolated the river channel from the flood plain, in this particular case. Moreover, the site lies at elevations of 1 to 2 feet below sea level. Areas of the surrounding neighborhoods lie at elevations of as low as 5 feet below sea level. Low berms in the Bolsa Chica lowlands, in addition to the EGGWFCC levees, protect these neighborhoods from tidal flooding. Storm water must be collected through a series of storm drains lying well below sea level, and pumped up into the EGGWFCC through a forebay at the Slater pump station, which is on the south side of the flood control channel adjacent to the subject site. However, the capacity of the existing EGGWFCC is insufficient to carry the 100-year flood event. The channel will carry only about 4,200 cubic feet per second and will overflow in a 100 year event. Because the south levee is mostly lower than the north, more water would overflow to the south, and into the Bolsa Chica wetlands, than to the north. Nevertheless a total of about 52 acre feet would overtop the north levee in a 100-year flood event. In fact, overtopping of the levees will likely result in their complete failure, with a resultant loss of capacity of the EGGWFCC and inundation by ocean waters. The subject site and much of the surrounding area are susceptible to tidal flooding. Tidal flooding could occur when extreme high tides occur concurrently with storm surge events. According to some studies, the existing tidal flooding risk was increased with the opening of the ocean inlet into the Bolsa Chica Restoration area. Regardless of the cause of the flooding, high tides and storm surge will create tidal flooding. The worst case scenario would occur when high tide and storm surge occurs during failure of the levees of the lower reaches of the East Garden Grove Wintersburg Flood Control Channel (EGGWFCC) (which is possible as the levees are not FEMA certified). Under these scenarios, up to 170 acres of existing development, excluding the subject site, would be flooded. Therefore, contemplation of any development of the subject site must address potential flooding of existing inland development, as well as any proposed development of the subject site, during the 100-year flood event. Section 30236 of the Coastal Act addresses channelization and other substantial alterations of rivers and streams and requires such work incorporate the best mitigation measures feasible. In addition, if flood control measures are permitted, the Commission must find there are no other feasible methods for protecting existing structures in the floodplain, and that such protection is necessary for public safety and to protect existing development.



In studies designed to determine appropriate base flood elevations for future residential development at the subject site, the property owner’s consultants have made use of many diverse hydrologic models that included complete failure of the EGGWFCC levees, failure of the pumps, and variations in timing of the failures of both levees and pumps. Based on these studies, the property owner’s consultants have demonstrated to the satisfaction of the Commission’s staff geologist and to the satisfaction of the Commission that the 100-year Base Flood Elevations derived for the site are the worst case ponding elevations of all the hydrologic models considered and assure the safety of the site during a 100-year flood event. The property owner has indicated, in documents submitted with the related coastal development permit application, that a vegetated flood protection feature (herein referred to as the “VFPF”, essentially a vegetated flood protection levee) is proposed in the southwestern part of the site. In this area, the EGGWFCC is approximately 11 feet above sea level and the bluff at the western site boundary raises some 40 feet above sea level. There is a gap in elevation between the EGGWFCC levee and the bluff in the area of the former county parcel. A flood protection levee in this location could effectively capture tidal floods if it is constructed to an elevation above the expected flood flow. The existing EGGWFCC levee in the area adjacent to the subject site is expected to be reconstructed to meet FEMA certification standards and would have an elevation of 11 feet above sea level (the existing levee’s elevation is also 11 feet above sea level). If a flood protection levee were constructed to the same elevation, flood waters would be prevented from flooding the subject site as well as the additional 170 inland acres. As stated, the subject site and much of the surrounding area (an estimated 170 acres) is susceptible to flooding caused by a tidal surge and/or a 100-year storm event. Regarding the potential for the site and surrounding area to flood, the Commission’s staff geologist states:

“In summary, I concur with the applicant [of the related coastal development permit application] and his hydrologic consultants that some combination of reinforcement of the EGGWFCC levee and an additional levee/floodwall between the northern levee of the EGGWFCC and the river bluff to the northwest is a necessary component of flood control protection to assure that the Parkside Estates [subject] site will be free of flood hazards in a 100-year flood event. A byproduct of these improvements will be protection of some 800 homes currently at risk.”

Regarding tsunami hazard the Memo states:



“The Huntington Beach lowlands are quite vulnerable to a major tsunami. A tsunami that overtopped the low berms associated with the Pacific Coast Highway and the oil field roads in the Bolsa Chica wetlands could inundate a large area of the lowlands, much of which lies below sea level. The proposed “vegetated flood protection feature” and the improvements to the north levee of the East Garden Grove Wintersburg Flood Control Channel [proposed under the coastal permit application, not part of the LUP amendment], together with the increased pad elevation, will lower the vulnerability of the Parkside Estates site. Although the placement of fill on the site would displace flood waters into the surrounding neighborhood during a major tsunami, the “vegetated flood protection feature” does lower the susceptibility of this area to smaller tsunamis.”

Regarding suitability of the subject site for development, the Memo concludes:

“In summary, the Parkside Estates is not suitable for residential development without fairly extensive mitigation measures, especially for the liquefaction and flood hazards. Shea Homes’ planned method of remediation involves extensive landform alteration in the form of adding fill to raise the site above Base Flood Elevation. Although this is not a generally recommended method of mitigating a flooding hazard due to the effects it can have on adjacent areas, the planned drainage system improvements more than mitigate for these effects. The necessary excavations and dewatering operations have the capacity to induce subsidence or other instability in adjacent sites, but these effects will be mitigated by doing the excavation in stages and by careful monitoring. The site will experience strong ground shaking during a major earthquake. Early reports that an active fault crosses the site cannot, however, be supported by the data currently available.”

In order to raise pads above base flood elevations, significant amounts of fill material will be imported onto the site, raising the site elevations from the existing 1 to 2 feet below sea level to 5.5 to 11.4 feet above sea level. This raises the question of whether such fill would result in flood waters being displaced to neighboring areas. However, the subject site as it currently exists is already at a higher elevation (1 to 2 feet below sea level) than the surrounding areas (as low as 5 feet below sea level). Flooding of these neighborhoods would occur even without site development, although it would be exacerbated by the addition of fill at the subject site, if mitigation is not undertaken. The related coastal development permit application proposes to make several improvements to the area drainage system including improving the capacity and



stability of the EGGWFCC, increasing the capacity of the storm drains under Kenilworth Drive and Graham Street, adding two new pumps to the Slater pump station, and constructing a Federal Emergency Management Agency (FEMA) certifiable “vegetated flood protection feature” at elevation 11 feet above sea level between the bluff along the western site boundary and the north levee of the EGGWFCC. If all these improvements were implemented they would more than mitigate for the exacerbated flood condition caused by the addition of fill necessary to protect existing development in any event, and it is in the least environmentally damaging location. In summary, information submitted relative to the related coastal development permit application indicates some level of flood control is necessary to protect existing development and there are feasible mitigation measures available consistent with the requirements of Section 30246. However, there is no specific requirement in the proposed amendment to assure that measures necessary for risk reduction would be incorporated into future site development. Without such requirements in the amendment, there is no assurance that mitigation measures will be required and risks minimized as required by Sections 30236 and 30253 of the Coastal Act. Therefore the amendment must be denied as submitted.

8. Conclusion – Consistency with Chapter 3 Policies of the Coastal Act

As proposed, the Land Use Plan amendment contains significant deficiencies with regard to consistency with the Coastal Act. As proposed, the amendment cannot be found consistent with Coastal Act Sections 30210 and 30252 regarding maximizing access, 30251 regarding protection of public views, 30233 and 30250 regarding wetlands, 30240 regarding ESHA, 30244 regarding archaeological resources, and 30230 and 30231 regarding water quality. In sum, the proposed changes to the LUP do not meet the requirements of and are not in conformity with the policies in chapter 3 of the Coastal Act. Therefore, the amendment request must be denied as submitted. HNB LCPA 1-06 Appendix A 7.07 mv

Documents

South Coast Area Office 200 Oceangate, Suite 1000 Long Beach, …documents.coastal.ca.gov/reports/2007/11/W16a-11-2007.pdf · 2014-03-10 · published in the Huntington Beach Independent,